State Of Washington, Respondent V. Marlon Roberto Aldridge, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
MARLON ROBERTO ALDRIDGE,
Appellant.
No. 71313-2-1
ORDER WITHDRAWING
OPINION AND SUBSTITUTING
OPINION
Appellant, Marlon Aldridge, moved for reconsideration of this court's
opinion filed on March 16, 2015. 	Respondent, State of Washington, filed an
answer to appellant's motion for reconsideration.
The court has determined that the opinion filed on March 16, 2015, shall
be withdrawn and a substitute opinion be filed. 	Now, therefore, it is hereby
ORDERED that the opinion filed on March 16, 2015, is withdrawn and a
substitute opinion be filed.
DATED this 	1140 day of _JY\3M 	2015
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MARLON ROBERTO ALDRIDGE, 	) 	UNPUBLISHED OPINION 	•& 	^r:
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Appellant. 	) 	FILED: 	May 11,2015 	J
Becker, J. — A defendant who pleads guilty to first degree assault is not
necessarily subject to a five-year mandatory minimum sentence. To justify the
mandatory minimum, the defendant must admit facts equivalent to the facts the
State would have had to prove at trial: that the defendant "used force or means
likely to result in death or intended to kill the victim." 	In this case, the defendant
admitted less than the State would have had to prove. 	Because he was
misinformed that a mandatory minimum sentence was a direct consequence of
his plea, he must be allowed to withdraw the plea.
Late one night in July 2012, two men got into a fight in downtown Seattle.
Appellant Marlon Aldridge approached them, and one of the men struck Aldridge
in the face and knocked him down. Aldridge hit his head on the curb. 	Moments
later, Aldridge got up, followed the man, and shot him in the groin. 	The State
charged Aldridge with one count of first degree assault with a firearm

No. 71313-2-1/2
enhancement. 	Because Aldridge had three prior felony convictions for controlled
substances (the most recent in 2005), the State also charged him with one count
of unlawful possession of a firearm.
After a jury was selected, the State offered to dismiss the firearm
enhancement ifAldridge pleaded guilty and agreed to make a joint
recommendation for a high-end standard range sentence of 171 months.
Aldridge accepted the offer.
Before sentencing, Aldridge—represented by new counsel—moved to
withdraw his plea on the ground that he was misinformed that a five-year
mandatory minimum applies automatically to assault in the first degree. 	The trial
court denied the motion. 	Aldridge appeals.
Due process requires that a defendant's guilty plea be knowing, voluntary,
and intelligent. 	CrR 4.2(d); In re Pers. Restraint of Isadore. 151 Wn.2d 294, 297,
88 P.3d 390 (2004). 	Once a guilty plea is accepted, the trial court may allow
withdrawal of the plea only to correct a manifest injustice. 	CrR 4.2(d). An
involuntary guilty plea constitutes a manifest injustice. State v. Wakefield, 130
Wn.2d 464, 472, 925 P.2d 183 (1996). 	A plea is involuntary where the defendant
is misinformed of a direct consequence of his plea. 	State v. Mendoza, 157
Wn.2d 582, 584, 141 P.3d 49 (2006). A mandatory minimum sentence is a direct
consequence of a guilty plea. 	Wood v. Morris, 87 Wn.2d 501, 513, 554 P.2d
1032 (1976). The above-cited case law establishes that Aldridge is entitled to
withdraw his plea if he was misinformed that he was subject to a mandatory
minimum sentence.

No. 71313-2-1/3
It is undisputed that Aldridge was informed that his plea would necessarily
subject him to a mandatory minimum sentence of five years. 	This is evident from
the testimony given at the plea withdrawal hearing by the attorney who
represented Aldridge at the time he entered the plea. 	He was asked if he
informed his client "that assault one has a mandatory minimum sentence of at
least five years of confinement?," and he answered, "Correct." He then testified
that he did not tell Aldridge that not all convictions for first degree assault result in
a mandatory minimum sentence:
Q. 	And did you explain to Mr. Aldridge that that is not—that is not
an absolute state of affairs? That in other words the statutory
minimum period of confinement attaches only in certain cases
when certain findings are made?
A. 	I did not do that in this case because I believe those
circumstances do exist.
IfAldridge was misinformed, he does not have to establish that the
information he was given was material to his decision to plead guilty. Mendoza,
157 Wn.2d at 590. The court does not "engage in a subjective inquiry into the
defendant's risk calculation and the reasons underlying his or her decision to
accept the plea bargain." 	Mendoza, 157 Wn.2d at 590-91. 	Although it may
seem that concern about a 5-year mandatory minimum is pointless in the context
of an agreed recommendation for a 171-month sentence, the State does not
make that argument. 	The State forthrightly acknowledges that "even though
Aldridge was aware that he would serve more than five years, the five-year
mandatory minimum has additional consequences"—namely, the offender does
not earn early release credit during the 5-year period. 	RCW 9.94A.540(2).

No. 71313-2-1/4
A five-year mandatory minimum sentence applies to offenders convicted of
first degree assault only under two conditions: where the offender "used force or
means likely to result in death or intended to kill the victim." 	RCW 9.94A.540(1)(b).
This sentencing statute "indicates that the legislature intended to increase the
punitive requirement for certain assaults that are characterized by unusually (within
the world of assault) violent acts or a particularly sinister intent." 	In re Pers.
Restraint of Tran, 154 Wn.2d 323, 329-30, 111 P.3d 1168 (2005). 	If the
prosecution of Aldridge had proceeded to trial, the State would have had to prove
at least one of these conditions to the finder of fact in order to obtain a mandatory
minimum sentence. 	The State acknowledges these principles as the starting point
of the analysis.
Aldridge argues that the mandatory minimum cannot be applied to him
because there was no jury finding that he either "used force or means likely to
result in death" or "intended to kill the victim." But as the State points out, Aldridge
waived the right to jury fact-finding by pleading guilty. The question is whether,
given the facts that Aldridge admitted by pleading guilty, a mandatory minimum
sentence was a direct consequence of his plea.
The State does not argue that Aldridge admitted he intended to kill the
victim. The issue is whether he admitted that he used force or means likely to
result in death.
Aldridge pleaded guilty to assault in the first degree "as charged in the
information." The information specifically alleged that Aldridge assaulted the
victim with "force and means likely to produce great bodily harm or death."

No. 71313-2-1/5
"Great bodily harm" means bodily injury which (1) "creates a probability of death,"
(2) "causes significant serious permanent disfigurement," or (3) "causes a
significant permanent loss or impairment of the function of any bodily part or
organ." RCW 9A.04.110(4).
Replacing the term "great bodily harm" in the information with its three
alternative definitions shows that Aldridge admitted to assaulting the victim using
force and means likely to produce (1) bodily injury which creates a probability of
death, (2) bodily injury which causes significant serious permanent disfigurement,
(3) bodily injury which causes a significant permanent loss or impairment of the
function of any bodily part or organ, or (4) death.
Of this list, only (1) and (4) are facts supporting the imposition of the five-
year mandatory minimum. 	Using "force and means likely to produce" "bodily
injury" which "creates a probability of death" (the first definition of great bodily
harm) is legally indistinguishable from "using force or means likely to result in
death" (a fact sufficient to impose the mandatory five-year minimum).
By pleading guilty to a charging document alleging four alternative facts,
Aldridge admitted that at least one of those four facts existed, but he did not
admit which one. 	"'[Wjhen either "A" or "B" could support a conviction, a
defendant who pleads guilty to a charging document alleging "A and B" admits
only "A" or"B. 	United States v. Guerrero-Jasso, 752 F.3d 1186, 1191 (9th Cir.
2014), quoting Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012).
Had Aldridge explicitly admitted to either (1) or (4), he would have
admitted facts necessary to impose the mandatory minimum. 	But he did not.

No. 71313-2-1/6
And the State did not "'seek an explicit admission of any unlawful conduct it
seeks to attribute to the defendant' for Apprendi purposes," as was its burden.
Guerrero-Jasso, 752 F.3d at 1191, quoting United States v. Hunt, 656 F.3d 906,
912 (9th Cir. 2011).
We conclude that Aldridge did not admit to facts sufficient to support the
imposition of the five-year mandatory minimum sentence in RCW
9.94A.540(1)(b). 	Thus, he was misinformed of a direct consequence of his plea.
Reversed.
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WE CONCUR:
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