State Of Washington, V. Anthony Enrico Hamilton

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 80473-1-I

(Consolidated with 79219-9-I)

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

ANTHONY ENRICO HAMILTON,

Appellant.

ANDRUS, A.C.J. —Anthony Hamilton appeals his 1990 second degree

robbery conviction, arguing that the information failed to allege all essential

elements of second degree robbery. He also contends his guilty plea should be

vacated because the record of his plea hearing is insufficient for direct appellate

review and his plea was not voluntary. Finally, he appeals a 2018 order correcting

the duration of a no contact order in the judgment and sentence, arguing it was an

improper ex parte order that rendered the judgment and sentence invalid. We

disagree and affirm.

FACTS

The State charged Anthony Hamilton with second degree robbery on May

2, 1990. He appeared with counsel in King County Superior Court for a plea

Citations and pin cites are based on the Westlaw online version of the cited material.

No. 80473-1-I/2

hearing on May 29, 1990. The minute entry for this hearing stated “change of plea”

and “cause continued to [May 30, 1990].” There is no transcript of the May 29

hearing and the parties cannot locate the court reporter’s notes.

On May 30, 1990, he again appeared before the court and entered an

Alford 1 plea—stating that he was not guilty of robbery, but recognized he would

likely be found guilty at trial and wished to take advantage of the State’s offered

plea deal. The court asked Hamilton if he had reviewed the plea materials with his

attorney and whether he understood that by pleading guilty he was waiving his trial

rights. It further asked if his statements in the plea form were accurate and if all of

his questions had been answered. Hamilton answered yes to each question and

the court accepted the guilty plea. The court later sentenced Hamilton to 3 months’

confinement and 12 months of community custody.

In 1998, a Pierce County Superior Court jury convicted Hamilton of first

degree murder, first degree kidnapping and first degree robbery. That court

sentenced Hamilton to life without parole as a persistent offender, 2 with one of his

prior “strike” offenses being the 1990 second degree robbery conviction. 3

In June 2017, Hamilton filed a CrR 7.8 motion to withdraw his 1990 guilty

plea in King County Superior Court, claiming it was not knowing, intelligent and

voluntary. For reasons not evident in this record, the court took no action on the

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

2 Washington voters passed Initiative 593, entitled “Persistent Offender Accountability Act” in

November 1993, also known as the “three strikes and you’re out” law, after Hamilton was convicted

of second degree robbery in 1990 and before he was convicted in Pierce County of murder,

kidnapping and first degree robbery. See State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514

(1996). Under Initiative 593, robbery in the second degree was “a most serious offense,” and thus

a “strike.” Id. at 747 (quoting former RCW 9.94A.030(23)(1993)).

3 Hamilton’s second “strike” was a 1991 conviction for first degree robbery.

-2-

No. 80473-1-I/3

motion. A year later, he filed a CrR 7.8 motion to correct his sentence, this time

arguing that the failure of the original sentencing court to identify a specific term

for the no contact order contained in the judgment and sentence rendered it invalid.

He refiled the same motion in September 2018.

A month later, the court entered an “Order on Defendant’s Motion to Correct

Judgment & Sentence,” specifying that the judgment “should reflect that the no

contact [order] was for (10) TEN years.” The order added, “However, even the 10

years has passed, Department of Corrections has terminated supervision and any

[no contact order] in the judgment is hereby expired.” Hamilton timely appealed

this order.

In September 2019, Hamilton filed a notice of appeal of the 1990 judgment

and sentence. He moved to extend the time to file his appeal, which this court

granted because he had not been informed of his limited right to appeal in 1990.

In February 2020, we consolidated Hamilton’s two appeals.

In July 2020, Hamilton filed a motion to reverse his conviction, alleging there

was an insufficient record of the 1990 proceedings for effective direct review.

Pursuant to RAP 17.4(f), Hamilton provided a series of declarations establishing

that the court reporter’s notes from the May 29, 1990 hearing had been lost and

that Hamilton’s attorney in that case had no memory of the proceedings. Hamilton

also attached his own declaration, dated May 22, 2020, in which he stated he did

not understand the proceedings of his 1990 plea hearing, he had limited

opportunity to review the case with his appointed attorney, and he simply followed

the attorney’s advice to plead guilty and answer all of the court’s questions with

-3-

No. 80473-1-I/4

“yes.” We denied this motion and Hamilton filed a motion for discretionary review

with the Supreme Court. 4

The Supreme Court commissioner stayed Hamilton’s appeal pending its

decision in State v. Jenks, No. 98496-4. The Court issued its opinion in May 2021,

holding that ESSB 5288, which amended the persistent offender statute in 2019 to

eliminate second degree robbery from the list of “strike” offenses, did not apply

retroactively. 197 Wn.2d 708, 727, 487 P.3d 482 (2021). Shortly thereafter, the

Supreme Court denied discretionary review of Hamilton’s motion to reverse, noting

that the legislature had, after Jenks, amended the persistent offender statute to

make the statutory amendment retroactive, and acknowledging that Hamilton will

be resentenced regardless of the outcome of this appeal. 5 The Supreme Court

4 Supreme Court No. 99162-6.

5 See Laws of 2021 ch. 141, § 1, codified at RCW 9.94A.647, which now provides:

(1) In any criminal case wherein an offender has been sentenced as a persistent

offender, the offender must have a resentencing hearing if a current or past conviction

for robbery in the second degree was used as a basis for the finding that the offender

was a persistent offender. The prosecuting attorney for the county in which any offender

was sentenced as a persistent offender shall review each sentencing document. If a

current or past conviction for robbery in the second degree was used as a basis for a

finding that an offender was a persistent offender, the prosecuting attorney shall, or the

offender may, make a motion for relief from sentence to the original sentencing court.

(2) The sentencing court shall grant the motion if it finds that a current or past

conviction for robbery in the second degree was used as a basis for a finding that the

offender was a persistent offender and shall immediately set an expedited date for

resentencing. At resentencing, the court shall sentence the offender as if robbery in the

second degree was not a most serious offense at the time the original sentence was

imposed.

(3) Notwithstanding the provisions of RCW 9.94A.345, for purposes of

resentencing under this section or sentencing any person as a persistent offender after

July 25, 2021, robbery in the second degree shall not be considered a most serious

offense regardless of whether the offense was committed before, on, or after the effective

date of chapter 187, Laws of 2019 [July 28, 2019].

-4-

No. 80473-1-I/5

lifted the stay in Hamilton’s case in October 2021 and it is now before us to address

his consolidated appeal on the merits.

ANALYSIS

A. Legal Adequacy of the Information

Hamilton challenges the legal adequacy of his 1990 information. He argues

that the information failed to include the element of second degree robbery that

“force or fear must be used to obtain or retain possession of the property, or to

prevent or overcome resistance to the taking.” We disagree.

The Sixth Amendment to the United States Constitution and article I, section

22 of the Washington Constitution require that a charging document allege all

essential elements of a crime, statutory and nonstatutory, to inform the defendant

of the charges against him and to allow him to prepare his defense. State v.

Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wn.2d

93, 101-02, 812 P.2d 86 (1991); State v. Ralph, 85 Wn. App. 82, 84, 930 P.2d

1235 (1997).

The sufficiency of an information is an issue of constitutional magnitude that

may be raised for the first time on appeal. RAP 2.5(a)(3); Kjorsvik, 117 Wn.2d at

102. Because Hamilton challenges the charging document for the first time after

the verdict was rendered, we construe the information liberally and ask (1) whether

the necessary elements of the offense do not appear in any form, or by fair

construction cannot be found, in the charging document; and (2) whether he was

actually prejudiced by the faulty information. Id. at 105-06. We review the

-5-

No. 80473-1-I/6

constitutional sufficiency of an information de novo. State v. Johnson, 180 Wn. 2d

295, 300, 325 P.3d 135 (2014).

“A person is guilty of robbery in the second degree if he or she commits

robbery.” RCW 9A.56.210(1). RCW 9A.56.190 provides

A person commits robbery when he or she unlawfully takes personal

property from the person of another or in his or her presence against

his or her will by the use or threatened use of immediate force,

violence, or fear of injury to that person or his or her property or the

person or property of anyone. Such force or fear must be used to

obtain or retain possession of the property, or to prevent or overcome

resistance to the taking; in either of which cases the degree of force

is immaterial. Such taking constitutes robbery whenever it appears

that, although the taking was fully completed without the knowledge

of the person from whom taken, such knowledge was prevented by

the use of force or fear.

The charging information alleged:

That the defendant Anthony Enrico Hamilton in King County,

Washington, on or about April 27, 1990, did unlawfully take personal

property, to-wit: lawful money of the United States from the person

and in the presence of Dannielle Johnson against her will, by the use

or threatened use of immediate force, violence and fear of injury to

such person or her property.

This language is verbatim to the first sentence of RCW 9A.56.190.

Hamilton contends that the information is deficient because it did not include

the language of the second sentence of RCW 9A.56.190, that “force or fear must

be used to obtain or retain possession of the property, or to prevent or overcome

resistance to the taking.” But this court rejected the same argument in State v.

Phillips, 9 Wn. App. 2d 368, 444 P.3d 51, review denied, 194 Wn.2d 1007 (2019).

In that case, we held that the first sentence of RCW 9A.56.190 sets forth the

essential elements of robbery, while the second and third sentences are merely

definitional. Id. at 377. We adhere to that ruling here.

-6-

No. 80473-1-I/7

Hamilton cites State v. Todd, 200 Wn. App. 879, 885-86, 403 P.3d 867

(2017), in which Division Three of this court held that the second sentence of RCW

9A.56.190 constituted a statutory element of the crime of robbery. But, as we

explained in Phillips,

The Todd opinion is best understood in light of its assertion that the

Supreme Court has identified force or fear being used to obtain or

retain possession of property as an element of robbery. See 200 Wn.

App. at 885-86, 403 P.3d 867. In fact, the Supreme Court opinion to

which the Todd opinion cited for this proposition, State v. Allen, 159

Wn.2d 1, 147 P.3d 581 (2006), did not so hold.

Phillips, 9 Wn. App. 2d at 379 (emphasis in original). In Allen, the defendant

challenged the sufficiency of the evidence supporting his conviction for first degree

murder with an aggravating circumstance of robbery. Allen, 159 Wn.2d at 7. It

held that,

to establish the aggravating factor of robbery in this case, the State

had to prove beyond a reasonable doubt that Allen: (1) took the

cashbox from his mother's person or in her presence, (2) against her

will, and (3) used force or fear to take the cashbox or to prevent his

mother from resisting the taking.

Id. at 9. Thus,

the Allen court was not engaged in announcing a new statutory

element of robbery. Rather, it was discussing what the State—in that

case, as the case had been tried—had to establish to prove guilt of

the charge. There are no statutory elements of robbery requiring

proof of “cashboxes” or “mothers.” Instead, the court was

referencing the State's theory of the case at hand—and the court was

evaluating whether the evidence adduced actually proved that

theory. The Allen opinion did not purport to add to the statutory

elements of robbery.

-7-

No. 80473-1-I/8

Phillips, 9 Wn. App. 2d at 380. 6 We reject Hamilton’s challenge to the legal

sufficiency of his information for the reasons set out in Phillips.

B. Voluntariness of Hamilton’s Guilty Plea

Hamilton next argues he is entitled to withdraw his guilty plea to second

degree robbery for several reasons. First, he argues, the record below is

insufficient to determine that his plea was in fact knowing, intelligent, and voluntary.

Second, he maintains he did not understand the nature of the Alford plea he

entered or the consequences of the plea.

1. Sufficiency of Record for Review

Hamilton contends that his conviction must be reversed because the

absence of a report of proceedings on the May 29, 1990, hearing renders the

record insufficient to permit effective appellate review. We disagree.

A criminal defendant is “constitutionally entitled to a ‘record of sufficient

completeness' to permit effective appellate review of his or her claims.” State v.

Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting State v. Thomas, 70 Wn.

App. 296, 298, 852 P.2d 1130 (1993)). “A ‘record of sufficient completeness' does

not translate automatically into a complete verbatim transcript.” Mayer v. City of

Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971). Other

methods of reporting trial proceedings may be constitutionally permissible if they

permit effective review. Tilton, 149 Wn.2d at 781. “[W]here the affidavits are

6 Our Supreme Court has granted review of this issue in State v. Derri, 17 Wn. App. 2d 376, 486

P.3d 901, review granted, 198 Wn.2d 1017 (2021). Unless and until the Supreme Court instructs

otherwise, we will continue to follow the well-reasoned analysis in Phillips. Hamilton’s motion to

stay this case pending the resolution of Derri is thus denied.

-8-

No. 80473-1-I/9

unable to produce a record which satisfactorily recounts the events material to the

issues on appeal, the appellate court must order a new trial.” Id. at 783.

RAP 9.3 and 9.4 establish the procedure for reconstructing a record when

the tape recording of the proceedings has been lost. State v. Waits, No. 37894-2-

III, slip op. at 6 (January 20, 2022). 7 These rules authorize the parties to give a

“fair and accurate” non-verbatim summary of testimony and events in the event of

a lost report of proceedings. Id.

Although Hamilton tried to comply with these procedures, the age of the

case made it impossible to create a narrative report of proceedings for May 29,

1990. Thirty years have passed since that hearing and, as Hamilton has noted,

both the prosecutor and judge have since passed away and Hamilton’s attorney

cannot recall the proceeding. The State does not dispute these facts.

Hamilton argues that remand for a new trial is required by the Supreme

Court’s decision in State v. Larson, 62 Wn.2d 64, 381 P.2d 120 (1963). In that

case, the defendant was convicted of attempted burglary after a jury trial. Id. On

appeal, the parties determined that the court reporter's notes of the trial had been

lost and that a verbatim statement of proceedings could not be furnished. Id. at

65. The State asked the trial court to furnish the defendant with a narrative

statement of proceedings based on the trial court's own notes, but the defendant's

appellate counsel contended he was unable to test the sufficiency of this narrative

statement of proceedings since he did not participate in the trial. The Supreme

Court agreed and concluded that the defendant was unable to test the sufficiency

7 https://www.courts.wa.gov/opinions/pdf/378942_pub.pdf.

-9-

No. 80473-1-I/10

of completeness of the narrative statement of proceedings for an adequate review

by this court or to determine what errors to assign for the purpose of obtaining an

adequate review on appeal. Id. at 67.

Larson is distinguishable. The report of proceedings for Larson’s entire jury

trial was lost. We confront a completely different situation; the lost report of

proceedings consists of a single hearing originally scheduled for the entry of a plea,

but during which the court continued the plea hearing to the following day. We

have a complete transcript of Hamilton’s May 30, 1990 plea hearing, during which

Hamilton was notified of his rights, questioned about his understanding of them,

and discussed the consequences of his plea in open court.

Hamilton has not demonstrated how the contents of the transcript of the

May 29, 1990 hearing would be material to this appeal. Hamilton is challenging

the validity of his plea. The plea was not entered on May 29; his plea hearing took

place on May 30. The record contains the complete verbatim report of proceedings

for that hearing. We have an adequate record with which to review Hamilton’s

claims of error.

2. Voluntariness of Guilty Plea

Hamilton contends he is entitled to withdraw his guilty plea because he did

not understand the nature and consequences of the plea. We reject this argument.

Generally, a party may raise on appeal only those issues raised at the trial

court. In re Det. of Brown, 154 Wn. App. 116, 121, 225 P.3d 1028 (2010). But a

defendant may raise the voluntariness of a plea for the first time on appeal if the

defendant establishes a manifest error affecting a constitutional right. RAP

- 10 -

No. 80473-1-I/11

2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001). Given the

fundamental constitutional rights of an accused which are implicated when a

defendant pleads guilty, a claim that a guilty plea pursuant to a plea agreement

was involuntary is the kind of constitutional error that RAP 2.5(a) encompasses.

Walsh, 143 Wn.2d at 7.

But we first preview the merits of the claimed constitutional error to

determine whether the argument is likely to succeed. Id. at 8. Only if an error did

occur do we address whether the error caused actual prejudice and was therefore

manifest. State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).

Under CrR 4.2(f), “[t]he court shall allow a defendant to withdraw the

defendant's plea of guilty whenever it appears that the withdrawal is necessary to

correct a manifest injustice.” A manifest injustice is one that is obvious, directly

observable, overt, and not obscure. State v. Wilson, 162 Wn. App. 409, 414, 253

P.3d 1143 (2011). A plea must be knowing, voluntary, and intelligent to be valid.

State v. Mendoza, 157 Wn. 2d 582, 587, 141 P.3d 49 (2006). For purposes of CrR

4.2(f), an involuntary plea is a per se instance where a manifest injustice exists.

Wilson, 162 Wn. App. at 414. The defendant bears the burden of proving a

manifest injustice required for withdrawal of a guilty plea. State v. Ross, 129 Wn.2d

279, 283-84, 916 P.2d 405 (1996).

When a defendant completes a plea statement and admits to reading,

understanding, and signing it, this creates a strong presumption that the plea is

voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). A judge’s

on-the-record inquiry of a defendant who signs a plea agreement strengthens the

- 11 -

No. 80473-1-I/12

inference of voluntariness. In re Det. of Scott, 150 Wn. App. 414, 427, 208 P.3d

1211 (2009). Indeed, “[w]hen the judge goes on to inquire orally of the defendant

and satisfies himself on the record of the existence of the various criteria of

voluntariness, the presumption of voluntariness is well nigh irrefutable.” State v.

Branch, 129 Wn.2d 635, 642 n.2, 919 P.2d 1228 (1996) (quoting State v. Perez,

33 Wn. App. 258, 261-62, 654 P.2d 708 (1982)). To overcome this presumption,

the defendant must present some evidence of involuntariness beyond his self-

serving allegations. Scott, 150 Wn. App. at 427.

Hamilton first contends the record does not demonstrate that he understood

the elements of the charged crime. The record does not support this argument.

A defendant must understand the facts of his case in relation to the

elements of the crime charged, protecting the defendant from pleading guilty

without understanding that the alleged conduct falls within the charged crime.

State v. Codiga, 162 Wn.2d 912, 923-24, 175 P.3d 1082 (2008).

On May 23, 1990, Hamilton signed a plea agreement with the State in which

he agreed to plead guilty as charged in exchange for the State’s recommendation

of a three-month jail sentence. He then appeared with counsel for a plea hearing

on May 30, 1990. On that day, he signed a written “Statement of Defendant on

Plea of Guilty.” In this document, Hamilton stated “I have been informed and fully

understand that I am charged with the crime(s) of robbery in the second degree.”

In the section of the statement reserved for the elements of the crime, Hamilton

wrote “see attached information.” Although Hamilton argues that no information

was attached to this document, on the next page he certified that “I have been

- 12 -

No. 80473-1-I/13

given a copy of the information.” The information laid out the elements of second

degree robbery.

Moreover, the documents Hamilton signed made it clear that he did not

believe he was guilty of the charged crime, but recognized he would probably be

found guilty, and wanted to take advantage of the plea deal to avoid a longer prison

sentence:

I am not guilty of robbery, however, I want to plead guilty in order to

take advantage of the prosecutor’s recommendation, and to avoid

possibly more serious consequences if this case went to trial. I have

reviewed the . . . case materials with my lawyer, and I agree that

there is a substantial likelihood I would be found guilty at a trial.

At the May 30 hearing, the court conducted an on-record inquiry and asked

Hamilton if he had reviewed the entire plea form with his attorney, to which

Hamilton responded “Yes ma’am.” The court asked if Hamilton understood his trial

rights, understood that by pleading guilty he waived those rights, and if all of

Hamilton’s questions had been answered. Hamilton responded “Yes” to each

inquiry.

The court explicitly discussed with Hamilton that he agreed that the court

could review the determination of probable cause to verify that there was a factual

basis for the plea and to determine the appropriate sentence, but that he was not

agreeing that it could be relied on as a basis for imposing an exceptional sentence.

Hamilton indicated that he understood this part of the agreement. Id. Hamilton

reaffirmed that he had read his entire plea statement, that he understood his

sentence, and had no questions about the process.

- 13 -

No. 80473-1-I/14

Following this inquiry, the trial court found that Hamilton’s decision to plead

guilty was knowing, intelligent, and voluntary and it accepted his guilty plea.

Because the record shows Hamilton acknowledged in writing and orally at the plea

hearing that he understood the charge against him, including the elements of the

crime, there is an extremely strong presumption that Hamilton’s plea was

voluntary.

Next, Hamilton argues that the record does not demonstrate that he

understood the nature of his Alford plea. Again, we disagree.

An Alford plea is inherently equivocal in the sense that it requires a

defendant to plead guilty without admitting guilt. In re Pers. Restraint of Montoya,

109 Wn.2d 270, 280, 744 P.2d 340 (1987) (abrogated on other grounds by State

v. Buckman, 190 Wn. 2d 51, 61, 409 P.3d 193 (2018)). This alone, however, does

not render an otherwise voluntary and intelligent guilty plea invalid. Id. “An Alford

plea is valid when it ʻrepresents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.’ ” State v. Stowe, 71 Wn. App.

182, 187, 858 P.2d 267 (1993) (quoting Montoya, 109 Wn.2d at 280).

In the context of an Alford plea, the accused must understand the nature

and consequences of the plea bargain and must decide that pleading guilty is in

his best interest. In re Pers. Restraint of Barr, 102 Wn.2d 265, 270, 684 P.2d 712

(1984).

For the trial court to make the proper evaluation, the plea bargain

must be fully disclosed. The trial court must find a factual basis to

support the original charge, and determine that defendant

understands the relationship of his conduct to that charge.

Defendant must be aware that the evidence available to the State on

the original offense is sufficient to convince a jury of his guilt.

- 14 -

No. 80473-1-I/15

Id.

These criteria were satisfied here. The record convinces us that Hamilton

chose to plead guilty to obtain the benefit of a recommended three-month

sentence. He understood that the probable cause certification was sufficient to

establish a factual basis for the second degree robbery charge and that he was

likely to be found guilty if he went to trial on that charge.

Hamilton contends that, in the Alford plea context, the trial court’s colloquy

was not sufficiently probing to ensure he understood he was pleading guilty to a

crime he did not commit. He relies on In Pers. Restraint of Cross, 178 Wn.2d 519,

309 P.3d 1186 (2013), in which our Supreme Court upheld a death sentence based

on an Alford plea. In doing so, the court relied on the fact that the trial court had

painstakingly walked Cross through the elements of the crimes of

which he was charged, his potential defenses, the rights he was

relinquishing, and the punishment he faced. On the issues of

premeditation and common scheme or plan, the judge had Cross

state in his own words his understanding of the meaning of those

concepts.

Id. at 530.

But Cross does not stand for the proposition that an Alford plea is only valid

if a trial court engages in the extensive inquiry that occurred in Cross’s case. The

issue there was whether a death sentence could be predicated on an Alford plea.

Id. at 529. The trial court engaged in an in-depth inquiry with Cross because he

was facing the very serious risk of being sentenced to death. We simply cannot

equate Cross to this case.

- 15 -

No. 80473-1-I/16

Hamilton also relies on State v. S.M., 100 Wn. App. 401, 996 P.2d 1111

(2000), in which Division Two of this court reversed the conviction of a 12-year-old

defendant for three counts of first degree rape of a child, concluding that the

defendant’s plea agreement was not voluntary. But that case is also

distinguishable. S.M.’s counsel was not present when he signed the plea form and

his only contact with appointed counsel was a brief meeting immediately before

the plea hearing, during which counsel did not discuss the substance of the plea

with S.M. Id. at 403-04. On appeal, the court concluded that this colloquy was

inadequate because “the record does not show that S.M. understood the law in

relation to the facts.” Id. at 414-15.

At the plea hearing, the trial court asked S.M. whether he knew the

meaning of “sexual intercourse” but it did not ask what he thought it

meant or inquire into his understanding of the nature of the charges.

...

S.M.'s plea statement does not provide the necessary factual basis

for the charge of rape of a child. It states only that “[i]n Cowlitz County

in the Spring of 1994, I had sexual contact with my Brother who is

age 10 in 1994. It happened three times.” This statement lacks any

indication that S.M. understood that the crime of rape of a child

required penetration. Nor does S.M.'s simple “yes” response to the

court's oral question about the meaning of sexual intercourse cure

this deficiency.

The plea statement is a critical indicator of S.M.'s understanding

about the nature of the charges, especially under the circumstances

here where the record shows that S.M. did not have the full

assistance of counsel before entering his plea.

Id. at 415.

Unlike S.M., there is no indication that Hamilton lacked the full assistance

of counsel before entering his plea. And while Hamilton may have been a youthful

offender at the age of 20, he certainly was not 12, as was the case in S.M. The

- 16 -

No. 80473-1-I/17

legal meaning to the phrase “sexual intercourse” may be difficult for a 12-year-old

to understand. We cannot say the same for the phrase “robbery,” particularly as

laid out in the information and as detailed in the accompanying probable cause

certification. Hamilton affirmed in his plea that he had reviewed the case materials,

including the charging information, with counsel and was voluntarily pleading guilty

to a crime he did not believe he committed to gain a clear benefit. The court

repeatedly inquired into Hamilton’s understanding of the consequences of his plea,

specifically the sentencing range of 3 to 9 months, and the waiver of his trial rights

and asked if he had any questions concerning the process. None of this occurred

in S.M.

Despite Hamilton’s suggestion to the contrary, there is no due process

requirement that the court orally question a defendant to ascertain whether he

understands the consequences of the plea and the nature of the offense. In re

Pers. Restraint of Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980). In Keene,

our Supreme Court upheld a defendant’s forgery conviction where the plea was

prepared with the help of an attorney, the defendant verbally informed the court

that his plea statement was truthful, and the defendant acknowledged receiving a

copy of the charging information containing the facts and elements of the crime.

Id. at 206-08. We reach the same conclusion here. Hamilton argues Keene is

distinguishable because the defendant in that case did not enter an Alford plea.

This argument is unpersuasive. As in Keene, the record here demonstrates that

Hamilton was apprised of the nature of his offense multiple times. He

acknowledged in his plea statement that he received this information, went over it

- 17 -

No. 80473-1-I/18

with his attorney, and understood it. The trial court then explicitly had Hamilton

confirm that he understood that he was pleading guilty to a crime he did not commit

to take advantage of a plea offer from the State and that the court would review

the probable cause determination to ensure there was a factual basis for the plea.

The plea documentation and colloquy were adequate to ensure Hamilton’s

Alford plea was voluntary.

Finally, in his statement of additional grounds, Hamilton argues that his plea

was invalid because he was not informed that his conviction could be used as a

strike offense. He also contends he was affirmatively misinformed that the

maximum sentence for his crime was 5, rather than 10 years.

Before a trial court accepts a guilty plea, the defendant must be informed of

all direct consequences of the plea. Mendoza, 157 Wn.2d at 588 Whether a

consequence is direct turns on whether “the result represents a definite, immediate

and largely automatic effect on the range of the defendant's punishment.” State v.

Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (quotation marks omitted).

Failing to inform a defendant of, or misinforming the defendant about, collateral

consequences of a plea does not render that plea involuntary. State v. Gregg, 196

Wn.2d 473, 485, 474 P.3d 539 (2020).

Hamilton argues he did not know that his conviction could be used as a

strike offense under the persistent offender statute. First, no one knew in 1990

that Washington voters would pass a “three strikes” law in 1993. Second, the fact

that his robbery conviction would become a strike offense is not a direct

consequence of his plea. In order to trigger the persistent offender statute,

- 18 -

No. 80473-1-I/19

Hamilton needed to commit additional qualifying strike offenses. “The potential for

the crime to count as a strike at some later time rests only on the possibility that

the defendant will commit future crimes.” State v. Lewis, 141 Wn. App. 367, 395,

166 P.3d 786 (2007). Future possible eligibility for persistent offender status is not

a direct consequence of a guilty plea about which a defendant must be informed

before pleading guilty to a crime. Id.

Hamilton also argues that his plea agreement incorrectly informed him that

the statutory maximum for second degree robbery was five years, when it is in fact

ten years. Although the plea agreement did incorrectly state that the relevant

maximum sentence was five years, this error was corrected at the plea hearing

where the court stated, and Hamilton acknowledged, that robbery in the second

degree “carries with it a maximum sentence of ten years.”

Hamilton has not overcome the presumption that his plea was knowing,

intelligent, and voluntary. Because he is unlikely to succeed in a motion to

withdraw his plea, he has not established the existence of a manifest error affecting

a constitutional right under RAP 2.5(a)(3). Remand to allow Hamilton to obtain a

trial court ruling on a CrR 7.8 motion to withdraw his plea is unnecessary.

C. Order Correcting Judgment and Sentence

Hamilton next argues that the trial court violated his due process rights by

entering a 2018 “ex parte” order specifying that the no contact order in his 1990

judgment and sentence expired in 2000. We disagree.

On June 21, 2018, Hamilton filed a motion to correct his judgment and

sentence, indicating that while the judgment ordered that he have no contact with

- 19 -

No. 80473-1-I/20

his two victims, it did not specify the duration of this no contact order. He

submitted, with the motion, a form entitled “Note for Criminal Motion,” setting the

motion for consideration by Judge Laura Inveen on July 17, 2018. The motion

does not appear to have been properly noted because the form itself indicates that

all criminal motions are to be heard by the Assistant Chief Criminal Judge. Judge

Inveen was not the Assistant Chief Criminal Judge at that time.

Hamilton refiled the motion on September 13, 2018, and used a different

form, entitled “Notice of Court Date,” setting the motion for consideration by Judge

Nicole Phelps without oral argument on October 19, 2018, “or earliest

convenience.”

Judge Phelps addressed this motion on October 15, 2018 by entering a

handwritten order that recognized the original judgment and sentence left the term

of the no contact provision blank. The court ordered that “the judgment should

reflect that the no contact [order] was for (10) ten years. However, even the 10

years has passed. Department of Corrections has terminated supervision and any

NCO in judgment is hereby expired.”

When a judgment and sentence is missing a term over which there is no

dispute, the appropriate method for correcting the error is a motion to correct a

clerical mistake under CrR 7.8(a). State v. Priest, 100 Wn. App. 451, 455, 997

P.2d 452 (2000). That rule provides:

Clerical mistakes in judgments, orders or other parts of the record

and errors therein arising from oversight or omission may be

corrected by the court at any time of its own initiative or on the motion

of any party and after such notice, if any, as the court orders. Such

mistakes may be so corrected before review is accepted by an

- 20 -

No. 80473-1-I/21

appellate court, and thereafter may be corrected pursuant to RAP

7.2(e).

The court clearly had the authority to correct Hamilton’s judgment and sentence,

at his request, to reflect the correct duration of his no contact order. It also had the

authority to note, for the record, that the no contact provision had expired and

Hamilton was no longer under DOC supervision for that conviction. Hamilton does

not identify anything erroneous in the court’s ruling.

Hamilton contends that there must have been an ex parte communication

about his motion between the prosecutor and the court because he had no prior

notice that the court’s order would be entered. An ex parte communication is a

communication “made by or to a judge, during a proceeding, regarding that

proceeding, without notice to a party.” State v. Watson, 155 Wn.2d 574, 579, 122

P.3d 903 (2005). While the State may have submitted, as its response to

Hamilton’s motion, a proposed order for the court to sign, and the State may have

neglected to serve a copy of its proposed order on Hamilton, we have no evidence

before us that the judge was aware of any defects in the State’s service on

Hamilton. The court did not abuse its discretion in entering the order proposed by

the State.

And, in any event, the court gave Hamilton the relief he sought—it granted

his motion to amend the judgment and sentence. Only an aggrieved party may

appeal. State v. Taylor, 150 Wn.2d 599, 603, 80 P.3d 605 (2003). An aggrieved

party is one whose personal rights or pecuniary interests have been affected. Id.

Hamilton is not an aggrieved party to the 2018 order because it has no effect on

his personal rights or pecuniary interests.

- 21 -

No. 80473-1-I/22

In his SAG, Hamilton additionally argues that the ex parte order violated his

constitutional right to be present at any stage in the criminal proceeding as well as

his right to assistance of counsel. First, Hamilton himself noted this motion for the

court’s consideration without oral argument at the court’s “earliest convenience.”

He can hardly complain about a process he put into motion. Second, the right to

be present only extends to hearings critical to the outcome of the defendant’s case.

State v. Love, 183 Wn.2d 598, 608, 354 P.3d 841 (2015). Hamilton cites no case

to support his contention that a post-judgment motion to correct a clerical error,

noted for consideration without oral argument, is a hearing critical to the outcome

of Hamilton’s case.

Finally, a criminal defendant has no constitutional right to counsel in post-

conviction proceedings other than first direct appeal of right. State v. Forest, 125

Wn. App. 702, 707, 105 P.3d 1045 (2005) (citing Pennsylvania v. Finley, 481 U.S.

551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987)).

The trial court did not err in correcting the judgment and sentence as

Hamilton asked it to do.

D. Community custody term

Finally, Hamilton argues in his SAG that the court erred in imposing an

“exceptional sentence” beyond the standard range of 3 to 9 months by sentencing

him to 3 months of confinement and 12 months of community custody. He argues

that his sentence “exceeded the standard range sentence, and thus exceeded the

‘relevant’ statutory maximum.” But Hamilton conflates his standard range with the

statutory maximum.

- 22 -

No. 80473-1-I/23

“The term of community custody . . . shall be reduced by the court whenever

an offender's standard range term of confinement in combination with the term of

community custody exceeds the statutory maximum for the crime as provided in

RCW 9A.20.021.” RCW 9.94A.701(10). The statutory maximum for second

degree robbery, a class B felony, is 10 years. RCW 9A.20.021(1)(b). Hamilton’s

sentence thus did not exceed the statutory maximum.

Affirmed.

WE CONCUR:

- 23 -