author: Korsmo, J. Fearing, J. (dissenting)

text:
    BORTON & SONS, INC., a Washington State corporation, Appellant, v. BURBANK PROPERTIES, LLC, a Washington State limited liability company, Respondent.
    No. 36189-6-III
    Court of Appeals of Washington, Division 3.
    FILED JULY 16, 2019
    PUBLISHED OPINION
   Korsmo, J.

¶1 Equity will permit an option to purchase property to be exercised late in order to avoid a forfeiture when significant improvements have been made to the property. The trial court ruled that respondent Burbank Properties satisfied this condition and allowed the option to be exercised a mere eight days late. We disagree and reverse.

FACTS

¶2 Burbank farmed approximately 164 acres it owned in Walla Walla County adjacent to orchards owned by appellant Borton & Sons. Burbank, whose sole owner is Eric Rogers, purchased the property in 2012 after having leased the land for farming since 2000. Burbank used the land to grow early season potatoes. Potatoes deplete the soil of nutrients and are subject to diseases that require strict crop rotation. Potatoes are grown one year and then the land is given over to other crops for at least one to two years. Historically, Burbank had followed one year of potato planting with two years of grass or hay planting.

¶3 After years of depressed potato prices, Burbank faced financial difficulties that threatened its operation. A settlement with one of its lenders required Burbank to sell the potato farm land. However, Burbank's early season potato contracts were a significant component of its operations. Accordingly, it settled on a plan to sell the land at a reduced rate, farm the land on lease terms during the interim, and repurchase the property at a reasonable sum. In essence, the land was being used to secure a short-term loan.

¶4 An appraisal valued the land at $1,875,000 and Burbank offered the land for sale for $300,000 less. The following day, desiring to purchase the land that bordered its apple orchards, Borton offered $1,550,000 for the land. The parties rapidly reached an agreement that included the following terms relevant to this appeal: Burbank could repurchase the land for $1,800,000 by December 31, 2018; Burbank had to exercise its repurchase option prior to December 31, 2017, by sending notice to Borton by certified or registered mail; Burbank would lease and farm the land during 2016, 2017, and 2018 at an annual rent of $78,775. Borton required the one year notice because it needed to order trees for its orchard one year in advance of its need for the trees.

¶5 In 2017, Burbank harvested a potato crop and thereafter planted Timothy hay that it expected to harvest in 2018 and 2019. At least twice during 2017, Burbank advised Borton representatives that it intended to exercise the repurchase option. On December 28, 2017, Eric Rogers prepared a written notice to Borton that Burbank would exercise its offer to repurchase the land. However, he did not mail the notice until January 4, 2018, and sent it by regular mail instead of by registered mail. Borton received the notice January 8, 2018. Believing the notice ineffectual, Borton wrote Burbank and demanded that it sign a notice that the option was terminated. Burbank responded that it had exercised the option and was planning to close on the property by December 31, 2018.

¶6 Borton initiated a declaratory judgment action to determine the status of the purchase option. Burbank answered and counterclaimed for its own declaratory judgment, arguing both that it properly exercised its option and that it was entitled to an equitable grace period to do so. Discovery was rapidly conducted and both parties soon sought summary judgment. The competing motions then were argued to the trial court. Burbank contended that it would lose the value of the Timothy hay and the equity it would obtain by repurchasing the property. Borton argued that Burbank had failed to timely or properly give notice, was unable to perform the purchase, and had not made any improvements justifying equitable relief.

¶7 The trial court concluded that an equitable grace period was called for due to the potential loss of hay and equity. Report of Proceedings at 16. An order was entered granting summary judgment for Burbank and authorizing it to close on the property by December 31, 2018. Burbank was also awarded its attorney fees based on the lease agreement. Borton's motion for summary judgment was denied, as was its subsequent motion for reconsideration.

¶8 Borton then timely appealed to this court. A panel heard oral argument of this case at Whitman College in Walla Walla.

ANALYSIS

¶9 The dispositive issue is whether the trial court erred in its respective summary judgment rulings by awarding equitable relief. We address that issue before briefly turning to the question of attorney fees.

Equitable Relief

¶10 The traditional interplay of law and equity provides a complicated puzzle on these facts. Principles of summary judgment and contract law inform our approach to this appeal.

¶11 This court reviews declaratory judgment actions the same as it does any other civil case. To-Ro Trade Shows v. Collins , 144 Wash.2d 403, 410, 27 P.3d 1149 (2001). Summary judgment rulings are reviewed de novo since an appellate court sits in the same position as the trial court. Hubbard v. Spokane County , 146 Wash.2d 699, 706-07, 50 P.3d 602 (2002). Summary judgment is proper when, after viewing the evidence in a light most favorable to the opposing party, there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Trimble v. Wash. State Univ. , 140 Wash.2d 88, 93, 993 P.2d 259 (2000). All facts and reasonable inferences are construed in the light most favorable to the nonmoving party. Id. Summary judgment should be granted if reasonable persons could reach but one conclusion based on all of the evidence. Id .

¶12 An option contract is "a complete, valid and binding agreement" to which general contract principles apply. Bennett Veneer Factors, Inc. v. Brewer , 73 Wash.2d 849, 853, 441 P.2d 128 (1968). "In applying these general contract principles, our primary goal in interpreting the option contract is to ascertain the parties' mutual intent." Chevalier v. Woempner , 172 Wash. App. 467, 476, 290 P.3d 1031 (2012). Under the "objective manifestation" theory of contracts, we determine the parties' intent by focusing on the objective manifestations expressed in their contract rather than focusing on unexpressed subjective intentions. Hearst Commc'n, Inc. v. Seattle Times Co. , 154 Wash.2d 493, 503, 115 P.3d 262 (2005). Thus, courts will "impute an intention corresponding to the reasonable meaning of the words used" in the contract. Id. The parties' subjective intent "is generally irrelevant if the intent can be determined from the actual words used" in the contract. Id . at 504, 115 P.3d 262. Courts will interpret what was "written instead of what was intended to be written." Id . "Accordingly, we give language in the option contract its ordinary, usual, and popular meaning unless the contract clearly demonstrates a contrary intent." Woempner , 172 Wash. App. at 476, 290 P.3d 1031. Ambiguities in a contract typically are construed against the drafter. Rouse v. Glascam Builders, Inc. , 101 Wash.2d 127, 135, 677 P.2d 125 (1984).

¶13 The option holder may exercise an option by complying with the terms of acceptance set forth in the option agreement. Whitworth v. Enitai Lumber Co. , 36 Wash.2d 767, 770, 220 P.2d 328 (1950). If the option is exercised unconditionally in accordance with the terms of the contract, the seller must sell the property in accordance with the terms of the option. Id. If the option is not exercised within the time or manner specified, all rights under the contract, along with any consideration given, are forfeited. Id. at 770-71, 220 P.2d 328. A court may order specific performance of the contract if the option is properly exercised and the seller refuses to convey the property. 3 ERIC MILLS HOLMES, CORBIN ON CONTRACTS § 11.13, at 570 (rev. ed. 1996). The terms of an option contract are to be strictly construed and, generally, time is of the essence. Pardee v. Jolly , 163 Wash.2d 558, 572, 182 P.3d 967 (2008).

¶14 On the basis of this hornbook law, Borton correctly claims that it should have prevailed at summary judgment because Burbank did not exercise the option at the proper time and in the proper manner. However, Washington recognizes that in some instances equity will excuse the untimely exercise of an option to purchase real estate. An equitable remedy is an extraordinary, not ordinary, form of relief. Sorenson v. Pyeatt , 158 Wash.2d 523, 531, 146 P.3d 1172 (2006). A court will grant equitable relief only when there is a showing that a party is entitled to a remedy and the remedy at law is inadequate. Orwick v. City of Seattle , 103 Wash.2d 249, 252, 692 P.2d 793 (1984). Whether a party is entitled to equitable relief "is in large part a matter addressed to the discretion of the trial court, with discretion to be exercised in light of the facts and circumstances of the particular case." Heckman Motors, Inc. v. Gunn , 73 Wash. App. 84, 88, 867 P.2d 683 (1994).

¶15 Burbank argues that it is entitled to equitable relief in order to avoid an inequitable forfeiture. Washington recognizes that equitable relief may be warranted in limited circumstances where an inequitable forfeiture would otherwise result. Wharf Rest., Inc. v. Port of Seattle , 24 Wash. App. 601, 611, 605 P.2d 334 (1979). This is because forfeitures "are not favored in law and are never enforced in equity unless the right thereto is so clear as to permit no denial." Pardee , 163 Wash.2d at 574, 182 P.3d 967. When the holder of an option makes valuable permanent improvements to the property with the intention to give its notice to exercise or extend the option, but then fails to timely give such notice, an equitable period of grace may be appropriate. Wharf , 24 Wash. App. at 611, 605 P.2d 334 (emphasis added) (citing 1 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 35, at 146-47 (1963)). Wharf astutely noted:

The courts which have considered this problem have not found the solution simple. On the one hand is equity's abhorrence of a forfeiture. On the other hand is the general reluctance of courts to relieve a party from its own negligent failure to timely exercise an option, when to do so might tend to introduce instability into business transactions and disregard commercial realities.

Id . at 610, 605 P.2d 334.

¶16 A forfeiture is:

1. The divestiture of property without compensation. 2. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty. ... 3. A destruction or deprivation of some estate or right because of the failure to perform some contractual obligation or condition.

BLACK'S LAW DICTIONARY 765 (10th ed. 2014).

¶17 Burbank argues that it did not have to make a permanent improvement to the land in order to seek relief in equity and that it would constitute an inequitable forfeiture to forego the value it would have gained by selling the property at market value in 2016 and the value of the hay it had planted but could not harvest in 2019. We disagree with his first two arguments and conclude the other was unproved.

¶18 Planting an annual crop as one has been doing for years does not constitute a permanent improvement in the land. Burbank has provided no authority to the contrary and tacitly seems to agree by, instead, arguing it had no need to establish permanent improvement. We disagree. All four of the Washington cases on this topic begin with, and continue to rely on, Wharf . And Wharf was very clear in its reliance on Professor Corbin's hornbook that the only cases in which equity might relieve a party from its negligent mistake was when "he had made valuable permanent improvements with intention to give the notice." 24 Wash. App. at 611, 605 P.2d 334 (quoting Corbin ).

¶19 The leaseholder in Wharf had an agreement with Port of Seattle and had exercised options to renew its prior lease agreements. Id . at 603, 605 P.2d 334. In 1977, after 25 years as leaseholder, Wharf inadvertently failed to exercise its option and had to sue to regain its lease after Port of Seattle found a new lessee. Id . at 604, 605 P.2d 334. After a trial, the court awarded an equitable grace period and ordered specific performance of the option to renew. Id. at 604-05, 605 P.2d 334. The court found that Wharf had made permanent improvements to the property "with the intention of exercising its option and remaining on the premises." Id. at 612, 605 P.2d 334. On appeal, Division One of this Court held that equitable relief period was proper under the special circumstances. Id. at 609, 605 P.2d 334. It summarized those circumstances: (1) failure to give notice was inadvertent, (2) an inequitable forfeiture would result, (3) the lessor had not changed its position in reliance on the failure to timely exercise the option, (4) the lease was long-term, having existed 25 years, and (5) there was no undue delay. Id . at 612-13, 605 P.2d 334. There was evidence that the restaurant was making improvements at the very time the option was supposed to be exercised. Id . at 612, 605 P.2d 334.

¶20 The cases following Wharf similarly have involved significant levels of permanent improvements. In Heckman , the parties had jointly cleared land and built a building to house an automobile dealership. 73 Wash. App. at 85, 867 P.2d 683. Like Wharf , the Heckman court relied on the same passage from Corbin indicating that equity stepped in only when a substantial permanent improvement might be forfeited. Id . at 87, 867 P.2d 683.

¶21 Substantial permanent improvements also were at issue in Pardee . There, the trial court found that the plaintiff who had failed to timely exercise its option had put in 2,500 hours of work and spent $20,669.58 for repairs in order to build up equity as collateral for purchasing the property. 163 Wash.2d at 576, 182 P.3d 967. The court considered these figures "a significant forfeiture." Id . Since the trial court erroneously had granted relief on a different basis, the Supreme Court reversed and remanded for the trial court to consider whether plaintiff was entitled to an equitable grace period in which to exercise the option. Id . at 576-77, 182 P.3d 967.

¶22 The final case is Cornish . Cornish College entered into an agreement to sublease a portion of a six-story building with 1000 Virginia Ltd. that included an option to purchase the building and the land. 158 Wash. App. at 212, 242 P.3d 1. Cornish renovated a portion of the property.

Id. at 213, 242 P.3d 1. The superior court determined that Cornish would forfeit approximately $600,000 if the option were not exercised. Id. at 219, 242 P.3d 1. The court then awarded an equitable grace period and granted specific performance. Id. at 214, 242 P.3d 1. On appeal, Division One of this court upheld the equitable relief. Id. at 219, 242 P.3d 1.

¶23 In all four of these instances, the option holder had expended significant funds making permanent improvements to the land it hoped to purchase. Here, Burbank simply continued its normal farming operation in expectation that it would continue to work the land. This is not the significant investment in the property that Professor Corbin viewed as the foundation for seeking equitable relief.

¶24 Even if Burbank is correct that significant permanent improvements were not necessary in order to obtain equitable relief, it still failed to show than an inequitable forfeiture occurred because it did not demonstrate that it would lose any significant value. It cites first to the fact that the land was sold for $300,000 below its market value and that it could have realized that sum if it had sold the land for fair market value in 2016. Even assuming that it could have realized full value from a forced sale in 2016, Burbank has not argued, and has not demonstrated, that it could have sold the land for any greater sum and still obtained an option to repurchase. The discounted sale price was the cost of the option in order to find someone willing to invest in the property for the short term.

¶25 The cost of an option is not a component of an inequitable forfeiture. On point here is Pardee . There the option holder paid $16,000 to obtain the purchase option. In its assessment of the forfeiture possibility, the court excluded the option cost, noting that it was "an acceptable result for the termination of an option." 163 Wash.2d at 576, 182 P.3d 967. While the potential $300,000 discount here is a significant figure, it was the cost of enticing a fellow farmer to become an investor. Both parties wanted the land, and both were willing to enter into this deal in the hopes that they would ultimately own it. The discounted sale price was not a forfeiture.

¶26 The remaining possibility is the value of the second year of the hay crop. No evidence was produced suggesting the potential value of this crop in 2019 despite the fact that Burbank had planted hay on the property in earlier years and should have had records from which to suggest a value. Whether there was any profit to be had from the hay is simply unknown.

¶27 Burbank did not establish that it suffered an inequitable forfeiture. There was no relevant evidence before the trial court to suggest otherwise. Accordingly, the court had no basis for finding that an inequitable forfeiture would occur that required the late exercise of the purchase option.

Attorney Fees

¶28 The trial court awarded Burbank its attorney fees in the trial court under the terms of the lease agreement. Burbank seeks to defend that award here and both parties seek attorney fees on appeal.

¶29 Because we reverse the trial court, we also reverse the superior court fee award. Attorney fees are available on appeal when there is a contractual or statutory basis for doing so. RAP 18.l(a). As prevailing party, we award Borton its attorney fees under the lease agreement subject to timely compliance with RAP 18.l(d).

¶30 Reversed.

I CONCUR:

Lawrence-Berrey, C.J.

Lawrence-Berrey, C.J. (concurring in part)

¶31 A trial court may grant equitable relief on summary judgment. But here, the facts do not warrant equitable relief. For these reasons, I write separately.

¶32 The parties invited the trial court to grant or deny equitable relief on summary judgment. The parties knew the facts, put those facts in front of the trial court, and, as their right, chose to forego the expense and delay of a trial. "Waiver is the intentional and voluntary relinquishment of a known right; it may be either express or implied." Doe v. Gonzaga Univ. , 143 Wash.2d 687, 711, 24 P.3d 390 (2001), rev'd on other grounds by 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002). "To constitute implied waiver, there must be unequivocal acts or conduct evidencing an intent to waive; intent will not be inferred from doubtful or ambiguous factors." Id. Both parties impliedly waived their right to a trial by requesting the trial court to decide the appropriateness of an equitable remedy on summary judgment. At a minimum, both parties invited the error, and it would be improper for us to review it. See In re Det. of Rushton , 190 Wash. App. 358, 372, 359 P.3d 935 (2015) (An appellate court will not review a trial court error if the party requesting review helped create the error.).

¶33 At the outset, it is important to clarify the appropriate standard of review. Our jurisprudence is inconsistent on the appropriate standard when reviewing a trial court's discretionary decision on summary judgment. Relying on Folsom v. Burger King , 135 Wash.2d 658, 663, 958 P.2d 301 (1998), we have held that a de novo standard of review applies when reviewing a trial court's discretionary decision to grant or deny equitable relief on summary judgment. See Cornish Coll. of the Arts v. 1000 Virginia Ltd. P'ship , 158 Wash. App. 203, 215-16, 242 P.3d 1 (2010). More recently, our Supreme Court unanimously held that abuse of discretion is the appropriate standard when reviewing a trial court's discretionary decision on summary judgment. Keck v. Collins , 184 Wash.2d 358, 368, 357 P.3d 1080 (2015) ; id. at 375, 357 P.3d 1080 (González, J., concurring) (trial court abused its discretion when striking an untimely affidavit opposing summary judgment). Because the granting of equitable remedies is the province of trial courts, not appellate courts, abuse of discretion is the appropriate standard of review here.

¶34 Having addressed the procedural issues, I now address why my vote is against Burbank Properties, LLC (Burbank) and for Borton & Sons, Inc. (Borton).

¶35 An equitable extension of time to purchase land may be warranted where an inequitable forfeiture would otherwise result. Wharf Rest., Inc. v. Port of Seattle , 24 Wash. App. 601, 612-13, 605 P.2d 334 (1979) ; Cornish Coll. , 158 Wash. App. at 218, 242 P.3d 1. Here, Burbank has failed to establish that equitable relief is warranted because it has failed to establish that the forfeiture would be inequitable.

¶36 Burbank's lender sued Burbank and its owner for defaulting on a loan agreement. The lender agreed to settle in exchange for Burbank selling the farm to generate short-term cash. But Burbank wanted to keep the farm. It found a way to do both.

¶37 Burbank agreed to sell the farm to Borton, and Borton agreed to lease the farm back to Burbank for three years and to grant Burbank an option to repurchase it. A lease with an option to purchase is an encumbrance against property that reduces its value to a purchaser. To induce Borton into the encumbrance, Burbank had to give Borton a deal. Burbank sold its farm to Borton for approximately 15 percent less than fair market value. Burbank agreed to the deal, which was necessary to resolve its lender's lawsuit against it and its owner. There was nothing inequitable about Burbank receiving 15 percent less than fair market value for the encumbered farm.

¶38 "The goal of equity is to do substantial justice. Equity exists to protect the interests of deserving parties from the 'harshness of strict legal rules.' " Columbia Cmty. Bank v. Newman Park , 177 Wash.2d 566, 569, 304 P.3d 472 (2013) (internal quotation marks omitted) (quoting Rodriguez v. Dep't of Labor & Indus. , 85 Wash.2d 949, 953, 540 P.2d 1359 (1975) ). But what seems substantially just to one party often seems substantially unjust to the other. It is, therefore, reasonable to require the party seeking equity to first establish that an inequity has occurred or will occur. In these types of cases, a party requesting an equitable grace period will seek to establish that forfeiture will result in an unjust loss to it and an unjust benefit to the opposing party.

¶39 Burbank argued to the trial court that it would suffer an unjust loss and Borton would receive an unjust benefit if Borton was permitted to retain the farm it purchased at a discount. But as explained above, there was nothing unjust about Borton acquiring the encumbered farm at a discount. Burbank has failed to show that the forfeiture would be inequitable. The trial court, therefore, abused its discretion by granting Burbank an equitable remedy.

Fearing, J. (dissenting)

¶40 For a civil practitioner, this appeal presents absorbing questions entailing the overlay of summary judgment jurisprudence, appellate review, and equity. Burbank Properties, LLC (Burbank Properties) seeks a grace period by which to exercise an option to purchase farmland owned by Borton & Sons, Inc. (Borton). In the superior court, both parties filed summary judgment motions. The superior court granted Burbank Properties' motion and afforded it an equitable grace period to exercise the right to purchase despite its failure to send timely notice to Borton. The granting of summary judgment when a party invokes equity conflicts with legal principles. In turn, principles of appellate review clash with our evaluation of a summary judgment order granted in equity.

¶41 As already mentioned, without a trial and on summary judgment, the superior court issued equitable relief to Burbank Properties. When reviewing a summary judgment motion, a trial court or appellate court must not "weigh the evidence." American Express Centurion Bank v. Stratman , 172 Wash. App. 667, 676, 292 P.3d 128 (2012) ; Arreygue v. Lutz , 116 Wash. App. 938, 940-41, 69 P.3d 881 (2003). Nevertheless, when a party seeks equitable relief, the court must "weigh and balance the equities of the parties," which inevitably entails weighing numerous facts. Credit Bureau Corp. v. Beckstead , 63 Wash.2d 183, 187, 385 P.2d 864 (1963).

¶42 On appeal, this court reverses the superior court's ruling and grants Borton summary judgment dismissing as a matter of law Burbank Properties' request for equitable relief. The lead opinion refuses to remand for a trial. Our state high court has held that a reviewing court cannot weigh the preponderance of conflicting oral evidence when considering equity cases. Darnell v. Noel , 34 Wash.2d 428, 431, 208 P.2d 1194 (1949). Summary judgment declaration testimony equates to oral testimony at trial.

¶43 In Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. 203, 242 P.3d 1 (2010), this court affirmed a summary judgment ruling by the superior court that granted the tenant a grace period in which to exercise an option to purchase despite late notice. This court noted that, due to the discretionary nature of decisions issued in equity, granting equitable relief on summary judgment may be inappropriate in many cases. The Cornish College court, nonetheless, affirmed the summary judgment order while characterizing the evidence as strongly supporting an equitable grace period. Like the lead opinion, I question the suitability of granting summary judgment in an equity case.

¶44 Despite the anomalous manner in which the parties and the respective courts have handled this suit in equity, I would not remand for trial since both parties waived the right to demand a trial. I would further rule that the superior court committed no error and affirm its summary judgment order favoring Burbank Properties.

¶45 Neither party before the superior court argued that, assuming the court denied its motion for summary judgment, the court should also deny the opposing party's motion because of a dispute of fact or that weighing of equitable factors always demands a trial. To the contrary, at page three of its opening summary judgment motion memorandum, Borton wrote: "In the present case, there are no disputed material facts, and both parties simply disagree on the legal effect of Burbank's admitted late exercise of its option to purchase." Clerk's Papers (CP) at 59. In a motion for reconsideration after the superior court granted Burbank Properties' motion, Borton never suggested that the superior court deny each party's motion or conduct a trial.

¶46 In its opening appellate brief, Borton argues for the first time that, since the superior court denied its summary judgment motion, the superior court should have at least denied Burbank Properties' summary judgment motion. This contention comes too late.

¶47 Generally, issues not raised in the trial court may not be raised for the first time on appeal. RAP 2.5(a) ; State v. Nitsch , 100 Wash. App. 512, 519, 997 P.2d 1000 (2000). Good sense lies behind the requirement that arguments be first asserted at trial. The prerequisite affords the trial court an opportunity to rule correctly on a matter before it can be presented on appeal. State v. Strine , 176 Wash.2d 742, 749, 293 P.3d 1177 (2013). The rule serves the goal of judicial economy by enabling trial courts to correct mistakes and thereby obviate the needless expense of appellate review and further trials, facilitates appellate review by ensuring that a complete record of the issues will be available, and prevents adversarial unfairness by ensuring that the prevailing party is not deprived of victory by claimed errors that it had no opportunity to address. State v. Strine , 176 Wash.2d at 749-50, 293 P.3d 1177 (2013) ; State v. Scott , 110 Wash.2d 682, 688, 757 P.2d 492 (1988). I conclude that both parties waived any requirement that the superior court conduct a trial before weighing the evidence and the equities. In fairness to the trial court, this court should not reverse its ruling on a ground never presented it except in rare circumstances.

¶48 This appellate court must next determine the standard of review of the trial court's decision to exercise its equitable authority, a risky determination because of the anomalous nature of a summary judgment in a suit in equity. On appeal, Burbank Properties, on the one hand, argues that this court should defer to the superior court's ruling. Generally, we employ an abuse of discretion standard of review for a trial court's exercise of equitable authority. Emerick v. Cardiac Study Center, Inc. , 189 Wash. App. 711, 730, 357 P.3d 696 (2015) ; Recreational Equipment, Inc. v. World Wrapps Northwest, Inc. , 165 Wash. App. 553, 559, 266 P.3d 924 (2011). On the other hand, Borton asks that we review the trial court's ruling de novo. After all, we review summary judgment orders de novo. Keck v. Collins , 184 Wash.2d 358, 370, 357 P.3d 1080 (2015).

¶49 I would avoid the question of the standard of review in addition to the query about the wisdom of granting summary judgment in an equitable suit. Regardless of whether this court defers to the superior court or weighs anew the evidence, I would affirm the superior court.

¶50 I move now to the merits. The lease between Burbank Properties and Borton reads, in relevant part:

SECTION EIGHT OPTION TO PURCHASE
In consideration of Lessee agreeing to sell the property to Lessor and to execute this Lease, Lessor hereby gives and grants to the Lessee an option to purchase the property for the sum of One Million Eight Hundred Thousand and NO/100 DOLLARS ($1,800,000.00) which shall be paid on closing. Lessee may exercise its option to purchase the Property at any time prior to December 31, 2017. Lessee's election to exercise this option must be evidenced by a written notice addressed to Lessor, sent by registered or certified mail to Lessor to Lessor's last known address . If the option is timely exercised, the term of the Lease shall be extended until closing.
....
Closing shall occur no later than December 31, 2018....

CP at 12-13. Burbank Properties prepared its notice to exercise the option on December 27, but due to inadvertence did not mail the notice until January 4.

SECTION TEN DEFAULT
... Termination and forfeiture of the lease shall not result if within thirty days of the receipt of such notice, Lessee has corrected the default or breach, or has taken action reasonably likely to affect such correction within a reasonable time. If any rent shall be due and unpaid, or if default shall be made in any of the covenants here contained, or should the Lessee fail to pay any of the obligations herein mentioned, the Lessor or his attorneys shall give the Lessee proper written notices, commence with lawful eviction, and have all persons and property removed therefrom as provided in the Landlord-Tenant Act (RCW 59.18).

CP at 14.

SECTION THIRTEEN TIME OF THE ESSENCE
It is specifically declared and agreed that time is of the essence of this lease agreement.

CP at 15.

¶51 This appeal raises important policy questions about parties' freedom to contract and the court's role in upholding contract provisions or modifying contract terms to serve fairness. On the one hand looms equity's abhorrence of a forfeiture. Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. 601, 611, 605 P.2d 334 (1979). Courts wish not to forfeit one's rights when one inadvertently makes a mistake and a forfeiture would cause one hardship and no harm to the other contracting party. Bekins Moving & Storage Co. v. Prudential Insurance Co. , 176 Cal. App. 3d 245, 251-52, 221 Cal. Rptr. 738 (1985). If there is no harm, why call a foul?

¶52 On the other hand, the law favors definiteness of contracts. United Properties Co. v. Walgreen Properties, Inc. , 2003-NMCA-140, 134 N.M. 725, 82 P.3d 535, 538-39. A court should not interfere with the bargain reached by the parties. United Properties Co. v. Walgreen Properties, Inc. , 82 P.3d at 539. Courts may not rewrite obligations that the parties have freely bargained for themselves. United Properties Co. v. Walgreen Properties, Inc. , 82 P.3d at 539 (2003). Equity jurisdiction has never given the judiciary a roving commission to do whatever it wishes in the name of fairness or public welfare. United Properties Co. v. Walgreen Properties, Inc. , 82 P.3d at 541 (2003). The decision of which of two profit-seeking parties is more deserving to prevail is not within the province of the courts. United Properties Co. v. Walgreen Properties, Inc. , 82 P.3d at 544 (2003).

¶53 A majority of courts that have dealt with the issue on appeal conclude that special circumstances may warrant a court in granting equitable relief against a lessee's failure or delay in giving notice to renew an option in its lease. Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. at 610-11, 605 P.2d 334 (1979) ; 49 AM. JUR. 2D Landlord and Tenant § 154 (2018). Washington courts apply the same rules with regard to an option to renew a lease and an option to purchase the property. Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. 601, 605 P.2d 334 (1979) ; Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. 203, 242 P.3d 1 (2010).

¶54 Washington law follows the rule allowing some relief from strictly applying contract terms. Forfeitures are not favored in law and are never enforced in equity unless the right thereto is so clear as to permit no denial. Hyrkas v. Knight , 64 Wash.2d 733, 734, 393 P.2d 943 (1964). In order to avoid the harshness of forfeitures and the hardship that often results from strict enforcement of contract terms, courts frequently grant a period of grace to a purchaser before a forfeiture will be decreed. Pardee v. Jolly , 163 Wash.2d 558, 574, 182 P.3d 967 (2008). Whether a grace period is warranted depends on the equities in each particular case. Moeller v. Good Hope Farms, Inc. , 35 Wash.2d 777, 783, 215 P.2d 425 (1950). Whether or not an equitable grace period is appropriate depends on the facts and circumstances of a case, and is largely within the discretion of the trial court. Pardee v. Jolly , 163 Wash.2d at 575, 182 P.3d 967 (2008) ; Heckman Motors, Inc. v. Gunn , 73 Wash. App. 84, 88, 867 P.2d 683 (1994).

¶55 In determining whether to grant a grace period, Washington courts review five factors identified and applied in Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. 601, 605 P.2d 334 (1979). Those elements are:

(1) the failure to give notice was purely inadvertent, (2) an inequitable forfeiture would have resulted without the equitable relief, (3) the failure to give timely notice did not prejudice or change the position of the other party, (4) the lease was for a long term and (5) there was no undue delay in giving notice.

Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. at 218, 242 P.3d 1 (2010). Not all five of these circumstances need be present in every case in which an equitable grace period is granted. Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. at 218, 242 P.3d 1. Indeed, such an inflexible approach would be inconsistent with the trial court's broad discretion to fashion equitable remedies. Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. at 218, 242 P.3d 1.

¶56 Borton relies on a passage in Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. 601, 605 P.2d 334 (1979), that cites Professor Corbin in his treatise on the law of contracts. Corbin writes that courts have only granted an equitable graced period in cases wherein the holder of the option made valuable permanent improvements to the property. Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. at 611, 605 P.2d 334, citing 1 A. Corbin, Corbin on Contracts § 35, at 146-47 (1963). In turn, I recognize that the four Washington decisions, in which courts have granted a grace period, entail the tenant fashioning permanent improvements to the real property. Pardee v. Jolly , 163 Wash.2d 558, 182 P.3d 967 (2008) ; Recreational Equipment, Inc. v. World Wrapps Northwest, Inc. , 165 Wash. App. 553, 266 P.3d 924 (2011) ; Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. 203, 242 P.3d 1 (2010) ; Wharf Restaurant, Inc. v. Port of Seattle , 24 Wash. App. 601, 605 P.2d 334 (1979). I disagree, however, that, based on reference to Professor Corbin and the presence of improvements in the Washington decisions, Washington law always demands valuable permanent improvements as a precondition to an equitable grace period.

¶57 I note that the five factors adopted in Wharf Restaurant, Inc. v. Port of Seattle do not include the optionee adding significant improvements to the property. Some of the Washington courts discuss the addition of improvements to the land or building when analyzing whether the optionee fulfills element two of the test, an inequitable forfeiture resulting if equity does not intervene. Nevertheless, inequity may result regardless of whether the optionee improves the real property. Also, if my predecessors on this court deemed an improvement as a necessary factor, the prior decisions could have and should have expressly placed the element in the list of factors. If earlier courts deemed valuable improvements to be a qualifier outside the five element factors, the courts would not have discussed improvements within the context of element two.

¶58 No Washington court has specifically held that substantial permanent improvements to the property is essential to a grace period. Instead Washington courts observe that all five circumstances need not be present in every case in which an equitable grace period is granted. Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. at 218, 242 P.3d 1. Therefore, element two, which sometimes includes substantial improvements, cannot be an indispensable circumstance.

¶59 Applying a rigid rule that precludes a grace period under one particular circumstance is anathema to equity. To repeat, whether a grace period is warranted depends on the equities in each particular case. Moeller v. Good Hope Farms, Inc. , 35 Wash.2d at 783, 215 P.2d 425 (1950). Whether or not an equitable grace period is appropriate depends on the facts and circumstances of a case and is largely within the discretion of the trial court. Pardee v. Jolly , 163 Wash.2d at 575, 182 P.3d 967 (2008). An inflexible approach would be inconsistent with the trial court's broad discretion to fashion equitable remedies. Cornish College of the Arts v. 1000 Virginia Ltd. Partnership , 158 Wash. App. at 218, 242 P.3d 1. Thus, the court must review all relevant circumstances, not simply whether the optionee improved the real property. If one factor controlled, the law would hamstring the trial court's discretion.

¶60 No case announces any reason behind adopting a rule necessitating an improvement to the land for a grace period. Presumably, such a rule deems expenditures as the only acceptable form of prejudice to the optionee, and the rule does not wish the optionor to receive a windfall by gaining possession of the improvements. But the opposite side of the prejudice coin is lack of prejudice to the optionor. No decision explains why prejudice to the optionee is more important than lack of prejudice to the optionor.

¶61 A contractual deadline for the exercise of the option allows the optionor to plan and act based on a firm understanding of whether the optionee will buy the land. Burbank Properties' delay was so short that Borton changed no plans. Instead, Borton wants the rigid application of a rule in order to gain a windfall. Since the common era, grace has superseded the application of rigid rules.

¶62 Part performance, an equitable doctrine, includes three elements: (1) delivery and assumption of actual and exclusive possession, (2) payment or tender of consideration, and (3) the making of permanent, substantial and valuable improvements, referable to the contract. Berg v. Ting , 125 Wash.2d 544, 556, 886 P.2d 564 (1995). Despite improvements constituting an element, equity does not deem improvements to be a necessary element, if a party fulfills the other two elements. Berg v. Ting , 125 Wash.2d at 558, 886 P.2d 564 (involving consideration as the missing element). In the context of part performance, equity also wishes the trial court to weigh the particular facts and circumstances of each discrete case rather than apply a rigid, formulaic rules. Berg v. Ting , 125 Wash.2d at 557, 886 P.2d 564.

¶63 Now the facts. One might ponder if exercising the option was so important to Burbank Properties, why Eric Rogers failed to plant in advance numerous prompts and reminders to insure timely exercise of the option. An astute and cautious businessperson would forgo other tasks, mail several notices by certified mail a week or more in advance, and personally deliver the notice days before the option expired on December 31. But people make mistakes and equity sometimes aids the forgetful when the forgetfulness does not harm another.

¶64 I agree with Borton that Burbank Properties installed no substantial improvements. Still it planted a hay crop and would not benefit from the crop's presence in 2019 if it could not exercise the option. More importantly, Burbank Properties suffers other inequities as a result of forfeiture of the option. Burbank Properties loses equity of $75,000 in the land. It loses land it has farmed since 2000. At the same time, Borton reaps a profit of at least $250,000 if Burbank Properties buys the land.

¶65 The other four factors weigh heavily in favor of Burbank Properties. Burbank Properties had a long term lease with Borton. Eric Rogers, or Burbank Properties, repeatedly told Borton that Burbank Properties intended to exercise the option. The failure to send notice by December 31 was inadvertent. Eric Rogers prepared the notice on December 28 and then left it on his desk.

¶66 Burbank Properties exercised the option only four days late. It mailed the notice on January 4, rather than December 31. Borton took no steps between December 31 and January 4 as a result of an untimely exercise of the option. Borton did not even take any steps by January 8, the day of receipt of the notice. Borton suffered no iota, scintilla, mite, or tittle of prejudice from the late exercise.

¶67 I note that the option paragraph in the Borton-Burbank Properties lease does not indicate whether Burbank Properties needed to mail the notice by December 31 or whether Borton needed to receive the notice by December 31. Generally, notice by mail is considered complete on mailing, not on receipt. 58 AM. JUR. 2D Notice § 29 (2012). Let us assume that Burbank Properties mailed the notice of exercise on December 31, but, because of delays in the mail, Borton did not receive the notice until January 8. Borton would have been in no different position than that which actually occurred.

¶68 This appeal also holds a unique factor. Closing of the sale was not to occur until December 2018. A delayed closing bolsters the lack of any prejudice to Borton.

¶69 On appeal, Borton also argues that Burbank Properties provided no evidence that it could pay the purchase price at closing. Nevertheless, closing would occur one year later. Borton provided no evidence or analysis as to Burbank Properties being unable to purchase at that later date.

¶70 I DISSENT:

      Although this case comes to us from summary judgment, this author has grave reservations about whether an equitable remedy can be granted in that setting. But see Cornish Coll. of the Arts v. 1000 Va. Ltd. P'ship , 158 Wash. App. 203, 242 P.3d 1 (2010). Judges do not weigh evidence or decide facts at summary judgment, but a weighing of equities and an assessment of the existence of damages both factor significantly in determining whether an inequitable forfeiture might have occurred. Findings of fact and conclusions of law are required in equity cases just as they are required in nonjury cases at law. CR 52(a)(1). With the exception of Cornish , the other cases applying this remedy in Washington did so after a trial. We appreciate that time was of the essence to both parties here and that declaratory judgment actions typically are heard in a brief bench trial, but it is difficult to justify the necessary fact-finding at summary judgment. However, neither party challenged the court's ability to apply the equitable remedy at summary judgment or on appeal.

      However, an ambiguous contract will not be construed against the drafter when the intent of the parties is clearly expressed in the record. See Forest Mktg. Enters. v. Dep't of Nat. Res. , 125 Wash. App. 126, 132-33, 104 P.3d 40 (2005).

      The lessee failed to timely exercise its option at the end of the five year period and the trial court declined to grant an equitable extension as both parties had significantly contributed to the development. 73 Wash. App. at 86, 88, 867 P.2d 683.


source: Caselaw Access Project

author: Glasgow, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Darin R. VANCE, Appellant.
    No. 50664-5-II
    Court of Appeals of Washington, Division 2.
    Filed July 2, 2019
    David Thomas McDonald, David T. McDonald PC, 833 SW 11th Ave., Ste. 625, Portland, OR, 97205-2130, Steven Whitman Thayer, Steven W. Thayer, 112 W. 11th St., Ste. 200, Vancouver, WA, 98660-3344, for Appellant.
    Rachael Rogers, Clark County Prosecuting Attorney's Office, PO Box 5000, Vancouver, WA, 98666-5000, for Respondent.
    PART PUBLISHED OPINION
   Glasgow, J.

¶ 1 Based on information received from federal law enforcement, the Vancouver Police Department and Clark County Sheriff's Office obtained and executed a search warrant for the home of Darin Richard Vance to search for depictions of a minor engaged in sexually explicit conduct. Investigators found several such images and ultimately charged Vance with 10 counts of possession of depictions of a minor engaged in sexually explicit conduct. Following a bench trial, Vance was convicted on all 10 counts. He appeals his convictions and sentence.

¶ 2 Vance argues that the search warrant violated article I, section 7 of the Washington Constitution. He contends that the warrant was not sufficiently particular, relying on Division One's decision in State v. McKee , 3 Wash. App. 2d 11, 413 P.3d 1049 (2018), rev'd and remanded , 193 Wash.2d 271, 438 P.3d 528 (2019). We hold that the warrant in this case was different from the one found invalid in McKee and was sufficiently particular to comply with the Fourth Amendment and article I, section 7. We address Vance's remaining arguments in the unpublished portion of this opinion.

¶ 3 We affirm Vance's convictions and sentence.

FACTS

¶ 4 On August 26, 2010, FBI Special Agent Alfred Burney, working undercover in Detroit, Michigan, used a peer-to-peer file sharing program to download 35 files from a software user with an IP address subscribed to Comcast. At least 20 of those files appeared to be pictures of children engaged in sexually explicit activity. Burney then submitted an administrative subpoena to Comcast requesting all subscriber information for the person using that IP address. Comcast responded that the IP address belonged to Vance. Burney sent this information and the downloaded files to the FBI's Seattle office.

¶ 5 The Seattle FBI office obtained and confirmed Vance's street address and sent the information and files it received to Investigator Maggi Holbrook of the Vancouver Police Department and the Clark County Sheriff's Office Digital Evidence Cybercrime Unit.

¶ 6 At the time of Burney's investigation, the FBI was part of an interagency, multi-jurisdictional initiative involving the Department of Justice, the Department of Homeland Security's United States Immigration and Customs Enforcement, and the Internet Crimes Against Children task forces. The sheriff's office's Cybercrime Unit was a local Internet Crimes Against Children task force, and Holbrook was the local liaison. Burney was not involved with the task force himself.

¶ 7 Using the information received from the FBI, Detective Patrick Kennedy of the Vancouver Police Department and Special Agent Julie Peay of Immigration and Customs Enforcement independently verified Vance's home address. Kennedy then obtained a search warrant for Vance's home. The warrant first authorized a search for "evidence of the crime(s) of: RCW 9.68A.050 Dealing in depictions of a minor engaged in sexually explicit conduct and RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit conduct." Clerk's Papers (CP) at 3. The warrant then described the items to be seized, including a list of specific types of electronic devices and media "capable of being used to commit or further the crimes outlined above, or to create, access, or store the types of evidence, contraband, fruits, or instrumentalities of such crimes." CP at 4.

¶ 8 The warrant also identified for seizure the accompanying records, documents, and information necessary to operate and access those devices and data. This description of the goods authorized for seizure concluded with authorization to transfer any and/or all seized items to the Cybercrime Unit:

[F]or the examination, analysis, and recovery of data from any seized items to include: graphic/image files in common formats such as JPG, GIF, PNG or in any other data format in which they might be stored, pictures, movie[ ] files, emails, spreadsheets, databases, word processing documents, Internet history, Internet web pages, newsgroup information, passwords encrypted files, documents, software programs, or any other data files, whether in allocated or unallocated space on the media, whether fully or partially intact or deleted, that are related to the production, creation, collection, trade, sale, distribution, or retention of files depicting minors engaged in sexually explicit acts/child pornography .

CP at 6 (emphasis added).

¶ 9 The Cybercrime Unit executed the warrant on Vance's home and seized several electronic devices. The resulting forensic examination revealed at least 20 images and videos depicting minors engaged in sexually explicit conduct.

¶ 10 The State charged Vance with seven counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of first degree dealing in depictions of a minor engaged in sexually explicit conduct. See State v. Vance , 184 Wash. App. 902, 906, 339 P.3d 245 (2014). The trial court redacted from the search warrant affidavit information obtained by federal agents, found probable cause for the search warrant no longer existed, granted the suppression motion, and dismissed the charges against Vance. See id. at 909-10, 339 P.3d 245. Vance then moved to suppress the evidence seized from his home and dismiss the case. Id. at 905, 339 P.3d 245. The trial court granted the motion. CP at 593. The State appealed and we reversed. See id. at 905-06, 339 P.3d 245.

¶ 11 On remand, Vance filed a new motion to suppress the evidence seized from his home arguing in part that the warrant was not sufficiently particular. The trial court denied the motion to suppress, and the parties proceeded to a bench trial. Just before trial, the State filed an amended information dismissing the distribution charges and instead charged Vance with a total of 10 counts of possession of depictions of minors engaged in explicit sexual conduct. After a bench trial, the court found Vance guilty on all 10 counts. Vance requested an exceptional sentence downward, but the court imposed a standard range sentence of 77 months of confinement.

¶ 12 Vance appeals his convictions and sentence.

ANALYSIS

PARTICULARITY OF SEARCH WARRANT

¶ 13 Vance argues that the search warrant for his electronic devices was insufficiently particular to satisfy the Fourth Amendment or article I, section 7, and so all evidence seized as a result of that warrant should have been suppressed. We disagree.

¶ 14 Both the Fourth Amendment and article I, section 7 require that a search warrant describe with particularity the place to be searched and the persons or things to be seized. State v. Perrone , 119 Wash.2d 538, 545, 834 P.2d 611 (1992). The particularity requirement prevents general and overbroad searches. Id. Where the warrant involves materials potentially protected by the First Amendment, a greater degree of particularity is required. Id . at 547, 834 P.2d 611. We review de novo whether a search warrant contains a sufficiently particularized description of the items to be searched and seized. Id. at 549, 834 P.2d 611.

¶ 15 A search warrant's description of the place to be searched and property to be seized is sufficiently particular if "it is as specific as the circumstances and the nature of the activity under investigation permit." Id. at 547, 834 P.2d 611. A generic or general description of the things to be seized may be sufficient if probable cause is shown and "a more specific description is impossible" with the information known to law enforcement at the time. Id. Search warrants must be "tested and interpreted in a common sense, practical manner, rather than in a hypertechnical sense." Id. at 549, 834 P.2d 611.

¶ 16 Vance relies on recent case law specifically addressing warrants authorizing searches for and seizures of evidence related to sexually explicit depictions of minors. He analogizes this case to McKee , 3 Wash. App. 2d 11, 413 P.3d 1049.

¶ 17 The search warrant in McKee listed the alleged crimes as "Sexual Exploitation of a Minor RCW 9.68A.040," "Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050." Id. at 18. The warrant authorized the police to conduct a "physical dump" of "all of the memory of the phone for examination." Id. at 29. The warrant then identified certain "Items Wanted" to be seized from the defendant's cell phone amounting essentially to any "electronic data from the cell phone showing evidence of the above listed crimes." Id. at 18-19.

¶ 18 In McKee , Division One of our court held that the warrant lacked the requisite particularity because it "was not carefully tailored to the justification to search and was not limited to data for which there was probable cause." Id. at 29. In other words, "the search warrant clearly allow[ed] search and seizure of data without regard to whether the data [was] connected to the crime." Id. "The language of the search warrant left to the discretion of the police what to seize." Id.

¶ 19 The McKee court relied on State v. Besola , in which our Supreme Court held that a mere citation to the child pornography statute at the top of the warrant did nothing to make it more particular. 184 Wash.2d 605, 615, 359 P.3d 799 (2015). The warrant in Besola identified the crime of "Possession of Child Pornography R.C.W. 9.68A.070," and authorized the police to seize:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings;
2. Any and all printed pornographic materials;
3. Any photographs, but particularly of minors;
4. Any and all computer hard drives or laptop computers and any memory storage devices;
5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Id. at 608-09, 359 P.3d 799. The warrant's rote citation to the statute failed to add information, such as the definition of "child pornography" that would have modified or limited the evidence that officers could seize. Id. at 615, 359 P.3d 799. Nor did the warrant include specific language using the citation to the statute "to describe the materials sought." Id. at 614, 359 P.3d 799. The omission of such limiting information created the "primary defect" in the warrant-it covered lawfully possessed materials, such as adult pornography and photographs of minors that did not depict them engaged in sexually explicit acts. Id. at 616, 359 P.3d 799.

¶ 20 The State argues this case more closely resembles State v. Martinez , 2 Wash. App. 2d 55, 408 P.3d 721, review denied , 190 Wash.2d 1028, 421 P.3d 458 (2018). There, Division One upheld a warrant that authorized seizure of any "photographs, pictures, albums of photographs, books, newspapers, magazines and other writings on the subject of sexual activities involving children." Id. at 66, 408 P.3d 721. The warrant also authorized the seizure of "pictures and/or drawings depicting children under the age of eighteen years who may be victims of the aforementioned offenses, and photographs and/or pictures depicting minors under the age of eighteen years engaged in sexually explicit conduct as defined in RCW 9.68A.011(3)." Id. at 66, 408 P.3d 721.

¶ 21 The Martinez court held the warrant was sufficiently particular because rather than merely cite to the statute, "it use[d] the language 'sexually explicit conduct as defined in RCW 9.68A.011(3).' " Id. at 67, 408 P.3d 721. The court also reasoned that, unlike in Perrone where the warrant contained the overbroad term "child pornography," the Martinez warrant used the statutory language "sexually explicit conduct." Id. at 66, 408 P.3d 721. Finally, while the warrant in Martinez also authorized the seizure of some materials that could be lawfully possessed, that alone did "not automatically make the warrant overbroad." Id. at 67, 408 P.3d 721. "[P]ossession of materials about sexuality involving children [was] relevant to the charged offense." Id. The warrant was not overbroad for authorizing the seizure of relevant materials. Id. For these reasons, the court concluded the warrant provided law enforcement with an objective standard to determine what should be seized. Id.

¶ 22 We conclude that the warrant in this case is more analogous to the one upheld in Martinez than the warrants lacking particularity struck down in McKee , Perrone , and Besola . The warrant in this case explained that there was probable cause to search for "evidence of the crime(s) of: RCW 9.68.050 Dealing in depictions of a minor engaged in sexually explicit conduct and RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit conduct." CP at 3. Then throughout, the warrant authorizes a search for computers or various devices "capable of being used to commit or further the crimes outlined above, or to create, access, or store the types of evidence, contraband, fruits, or instrumentalities of such crimes," connecting the search to depictions of minors engaged in sexually explicit conduct in a manner that was absent in Besola , 184 Wash.2d at 609, 359 P.3d 799. CP at 4.

¶ 23 Furthermore, the final paragraph of the warrant permits the Cybercrime Unit to transfer the electronic and related devices and to search them for "graphic/image files in common formats ... pictures, movie[ ] files, emails, spreadsheets, databases, word processing documents, Internet history, ... newsgroup information, ... encrypted files" and other similar files "that are related to the production, creation, collection, trade, sale, distribution, or retention of files depicting minors engaged in sexually explicit acts/child pornography." CP at 5-6.

¶ 24 Unlike the warrants in Besola and McKee , the warrant here regularly referred back to the statutory language limiting the evidence that officers could seize and so was sufficiently particular to cover only data and items connected to the crime. Unlike the warrant in McKee , which merely identified the crime of "Sexual exploitation of a minor," or Perrone , which only used the overbroad term, "child pornography," here the warrant used the more specific language, "Possession of depictions of a minor engaged in sexually explicit conduct." McKee , 3 Wash. App. 2d at 18, 413 P.3d 1049 ; Perrone , 119 Wash.2d at 553-54, 834 P.2d 611 ; CP at 134. The warrant here used sufficiently specific language to authorize the seizure of only illegal materials.

¶ 25 Vance argues that the warrant should have included the definition of "sexually explicit conduct" in RCW 9.68A.011(3). To be sure, adding a reference to that definition would have made this warrant even more precise. But the warrant taken as a whole makes it clear to the executing officer what specific items are authorized for search and seizure. And it does not appear that this warrant authorized law enforcement to search for and seize adult pornography or depictions of children more generally. While the warrant contemplates that law enforcement would retain Vance's devices for a period of time to search them for the files to seize, allowing law enforcement some amount of time to search electronic devices for this specifically identified evidence to seize does not undermine the validity of the warrant.

¶ 26 Accordingly, we hold that the search warrant was sufficiently particular. To the extent McKee contradicts our conclusion, we disagree with McKee . We affirm Vance's convictions and his sentence.

¶ 27 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Worswick, J.

Maxa, C.J.

      The issue before the Washington Supreme Court in McKee was whether the proper remedy following suppression of cell phone evidence was to vacate the defendant's convictions and remand to trial court for further proceedings, or to order all the counts dismissed. 438 P.3d at 530. The court held that the Court of Appeals should have vacated and remanded, rather than dismissing. Id. The Supreme Court did not address whether the warrant was sufficiently particular. Id.


author: Verellen, J.

text:
    STATE of Washington, Respondent, v. Sebastian Michael GREGG, Appellant.
    No. 77913-3-I
    Court of Appeals of Washington, Division 1.
    FILED: July 8, 2019
    Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
    Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
    PUBLISHED OPINION
   Verellen, J.

¶1 Sebastian Gregg appeals the constitutionality of his standard range sentence. He contends when sentencing a juvenile in adult court, the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington Constitution require a presumption that a juvenile's youthfulness is a mitigating factor and the State assumes the burden to overcome the presumption. Neither the federal nor the Washington case law cited by Gregg supports his argument or warrants deviating from the Sentencing Reform Act of 1981 (SRA), which places the burden of proving mitigating factors on the defendant.

¶2 Gregg also challenges the voluntariness of his guilty plea. Although Gregg was affirmatively misinformed about his duty to register as a felony firearm offender, Gregg fails to establish manifest injustice.

¶3 Therefore, we affirm.

FACTS

¶4 The facts of the underlying crimes are not at issue or in dispute.

¶5 The State charged Gregg, along with his codefendant, Dylan Mullins, with first degree murder with a firearm, first degree burglary with a firearm, and first degree arson. Although Gregg was 17 years old at the time of the murder, he was "subject to the exclusive original jurisdiction of the adult court" because he was charged with first degree murder.

¶6 Gregg pleaded guilty as charged. At sentencing, Gregg requested an exceptional sentence downward based on his youthfulness. Following a six-day sentencing hearing, the court imposed a standard range of sentence of 444 months.

¶7 Gregg appeals.

ANALYSIS

I. Challenge to the Standard Range Sentence

¶8 Gregg challenges the trial court's imposition of a standard range sentence.

¶9 The SRA provides that a standard range sentence "shall not be appealed." But a party may still " 'challenge the underlying legal conclusions and determinations by which a court comes to apply a particular sentencing provision.' " The SRA provides, "The court may impose a sentence outside the standard range for an offense if it finds ... that there are substantial and compelling reasons justifying an exceptional sentence." Under the SRA, the defendant has the burden to prove mitigating circumstances by a preponderance of the evidence.

¶10 Gregg contends the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington Constitution require a presumption that a juvenile's youth is a mitigating factor and that the State assume the burden to prove otherwise beyond a reasonable doubt. Constitutional interpretation is a question of law we review de novo.

¶11 Gregg raises these arguments for the first time on appeal. Although "[t]he appellate court may refuse to review any claim of error which was not raised in the trial court," a party may raise a "manifest error affecting a constitutional right" for the first time on appeal. Gregg's claimed error implicates his constitutional rights. And given the State's lack of briefing on whether the error is manifest, the State appears to acknowledge this issue is reviewable for the first time on appeal.

a. Eighth Amendment to the United States Constitution

¶12 The Eighth Amendment prohibits "cruel and unusual punishment." In the context of this prohibition, the United States Supreme Court and the Washington Supreme Court have repeatedly recognized that children are different from adults and these differences require different sentencing procedures, including full discretion for the court to consider youthfulness at sentencing and a categorical bar of certain levels of punishment for juveniles.

¶13 In 2005, in Roper v. Simmons, the United States Supreme Court acknowledged "[t]hree general differences between juveniles under 18 and adults [that] demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders."

First, ... "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions."....
The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. ...
The third broad difference is that the character of a juvenile is not as well formed as that of an adult. ... The personality traits of juveniles are more transitory, less fixed.

¶14 In consideration of these differences, the Court determined "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." In 2010, in Graham v. Florida, the Court extended the categorical bar from Roper to life without parole sentences for juveniles convicted of nonhomicide offenses.

¶15 In 2012, in Miller v. Alabama, the Court barred "mandatory" life without parole sentences for juveniles convicted of any offense. The Court did not completely foreclose a trial court's ability to impose a life sentence without the possibility of parole for juvenile offenders convicted of homicide. But it did announce the Eighth Amendment required courts "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."

¶16 In 2017, in State v. Ramos, our Supreme Court addressed whether the requirements of Miller applied to literal and de facto life without parole sentences for juveniles convicted of homicide. To support the court's determination that a Miller hearing was required in both circumstances, the court analyzed the Miller factors:

At the Miller hearing, the court must meaningfully consider how juveniles are different from adults, how those differences apply to the facts of the case, and whether those facts present the uncommon situation where a life-without-parole sentence for a juvenile homicide offender is constitutionally permissible. If the juvenile proves by a preponderance of the evidence that his or her crimes reflect transient immaturity, substantial and compelling reasons would necessarily justify an exceptional sentence below the standard range because a standard range sentence would be unconstitutional.

Our Supreme Court expressly determined " Miller does not require that the State assume the burden of proving that a standard range sentence should be imposed, rather than placing the burden on the juvenile offender to prove an exceptional sentence is justified."

¶17 Additionally, although our Supreme Court acknowledged in Ramos, "most juvenile homicide offenders facing the possibility of life without parole will be able to meet their burden of proving an exceptional sentence below the standard range is justified," Gregg is not facing either a literal or a de facto life without parole sentence. The court sentenced Gregg to 444 months (37 years).

¶18 Ramos does not endorse the additional procedural protections Gregg advocates. In Ramos, the defendant argued the State must assume the burden of proving the court should impose a standard range sentence. Although the Ramos court avoided "discount[ing] the potential benefits of such procedural requirements," the court determined the defendant had "not shown that the specific procedures ... are required as a matter of federal constitutional law." The court's comment concerning the "potential benefits" of additional procedural protections is dicta, and it cannot be read as endorsing Gregg's argument.

¶19 Gregg contends our Supreme Court "moved past Ramos" in State v. Houston-Sconiers. In Houston-Sconiers, our Supreme Court considered whether mandatory firearm enhancements for juvenile offenders violated Miller and the Eighth Amendment. The court held,

In accordance with Miller, ... sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system .... Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements.[ ]

¶20 Houston-Sconiers addresses the effect of the SRA's firearm enhancement provision on the court's considerable discretion when sentencing a juvenile defendant in adult court. RCW 9.94A.533(3)(e) provides, "Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter." Our Supreme Court determined a sentencing court's discretion to consider the juvenile's youthfulness is not constrained by the SRA's requirement that firearm enhancements are mandatory and run consecutively.

¶21 Houston-Sconiers neither mentions nor imposes the additional procedural protections Gregg requests. Although Houston-Sconiers does not cite Ramos or discuss the burden of proof, we reject Gregg's contention that this omission leaves the issue open. We are bound by our Supreme Court's holding in Ramos.

¶22 In 2019, in State v. Gilbert, our Supreme Court further emphasized the discretion provided to the court to consider youthfulness when sentencing juveniles in adult court. Gilbert "concern[ed] the scope of discretion a judge has in resentencing pursuant to RCW 10.95.035," the " Miller-fix" statute. As to Houston-Sconiers, the Gilbert court stated,

Our opinion in that case cannot be read as confined to the firearm enhancement statutes as it went so far as to question any statute that acts to limit consideration of the mitigating factors of youth during sentencing. Nor can it be read as confined to, or excluding, certain types of sentencing hearings as we held that the courts have discretion to impose downward sentences "regardless of how the juvenile got there."[ ]

¶23 The United States and the Washington Supreme Court cases cited by Gregg do not support his proposition that the court is required to presume youthfulness and the State assumes the burden of overcoming this presumption. In fact, with the exception of Ramos, none of these cases mention the additional procedural protections requested by Gregg. And in Ramos, our Supreme Court explicitly determined Miller and the Eighth Amendment do not require the additional procedural protections at issue. Neither federal nor Washington Eighth Amendment case law warrant deviating from the basic structure of the SRA, which places the burden of proving the existence of substantial and compelling reasons to support an exceptional sentence on the defendant.

¶24 Gregg also cites to several out-of-state cases. Similar to Ramos and several of the cases discussed above, these out-of-state cases interpret Miller as requiring a presumption against life without parole sentences for juvenile offenders. As mentioned above, Gregg is not subject to a life without parole sentence. And even if the out-of-state cases were analogous to these facts, we cannot ignore the binding precedent from our Supreme Court in Ramos.

¶25 Gregg has not shown that the Eighth Amendment requires a presumption that a juvenile's youth is a mitigating factor or that the State assumes the burden to prove otherwise beyond a reasonable doubt.

b. Article I, Section 14 of the Washington Constitution

¶26 Gregg also argues article I, section 14 of the Washington Constitution independently requires his requested procedural protections.

¶27 Our Supreme Court has " 'repeated[ly] recogni[zed] that the Washington State Constitution's cruel punishment clause often provides greater protection than the Eighth Amendment.' " But "[e]ven where it is already established that the Washington Constitution may provide enhanced protections on a general topic, parties are still required to explain why enhanced protections are appropriate in specific applications."

¶28 In Ramos, although the defendant was seeking similar procedural protections, our Supreme Court declined to decide "whether article I, section 14 of the Washington Constitution requires greater procedural protections than the Eighth Amendment when a juvenile homicide offender faces life without parole" because the defendant did not provide any explanation for why enhanced protections were appropriate under the circumstances.

¶29 Gregg relies on State v. Bassett from Division Two of this court to argue enhanced protections are appropriate in these circumstances. In Bassett, Division Two criticized the Miller analysis as "speculative" and "uncertain [in] nature." Expanding on this criticism, Gregg contends the Miller factors create a risk that "the juvenile will not receive the possibility of mitigation and will be subject to the same mandatory ranges and enhancements applied to adults." Gregg argues the presumption and burden shift would mitigate the risk identified in Bassett. But at most, Bassett 's critique of Miller could support more precise youthfulness factors. Nothing in Bassett suggests the State should have the burden of overcoming a presumption of youthfulness. And Gregg fails to provide any compelling argument to support such an assertion.

¶30 Here, the trial court fully considered all of the youthfulness arguments presented by Gregg.

Mr. Gregg is arguing his youthfulness is a mitigating factor justifying an exceptional sentence below the standard range. ...
In deciding this issue, I have considered a number of factors, including but not limited to, whether Mr. Gregg's youth, age 17, reduced his sense of responsibility. Did he understand the significance of his actions? Whether he was impetuous, unusually impulsive, had an increased susceptibility to others, including peer pressures, specifically that of Mr. Mullins. His truthfulness, or lack thereof, his level of maturity, and whether he had a genuine sense of remorse before, during, and after the murder.[ ]

¶31 Nothing in the record suggests the court misunderstood the full discretion it had to consider Gregg's youthfulness. And the court did not lean on the burden of proof when it determined there were no "substantial and compelling reasons to justify a sentence below the standard range."

And having looked at all of the evidence and listening carefully, taking more notes than I probably should have taken, but tons of notes, I find that this is not about youthful disobedience as it relates to Mr. Gregg. This is not youthful impulsivity. Mr. Gregg knew the consequences of his actions.[ ]

¶32 Gregg has not shown that article I, section 14 requires a presumption that a juvenile's youth is a mitigating factor or that the State assumes the burden to prove otherwise beyond a reasonable doubt.

II. Plea Agreement

¶33 Gregg contends his plea is involuntary because he was affirmatively misinformed that he would not be required to register as a felony firearm offender.

¶34 Gregg raises this issue for the first time on appeal. Because "[d]ue process requires that a guilty plea be knowing, intelligent, and voluntary," Gregg's claimed error implicates a constitutional right. But to obtain review, Gregg must still establish the error is manifest. To establish an error is manifest, the defendant must show " 'the asserted error had practical and identifiable consequences in the trial of the case.' "

¶35 In addition to the constitutional requirements, CrR 4.2(f) governs criminal pleas: "The 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." Prior to the acceptance of a guilty plea, a defendant " 'must be informed of all the direct consequences of his plea.' " "A direct consequence of pleading guilty is one having a definite, immediate, and largely automatic effect on the sentence." On the other hand, "[c]onsequences that are not 'automatically imposed' by the sentencing court, that do not 'automatically enhance' the sentence, or that do 'not alter the standard of punishment' are collateral." A manifest injustice occurs if the defendant materially relied on affirmative misinformation concerning a collateral consequence when deciding to plead guilty.

¶36 Here, the plea agreement included the following provision:

This offense is a felony firearm offense ... and the judge may impose a requirement that I register with the sheriff in the [c]ounty where I reside .... If this offense, or an offense committed in conjunction with this offense ... was committed against a child under 18, or was a serious violent offense, the judge must impose this registration requirement.[ ]

This provision was crossed out and signed by Gregg. At the plea hearing, the State asked Gregg, "There are a number of paragraphs throughout this document that have been crossed out and you have initialed. Do you understand that that means that these paragraphs, they do not apply to you?" Gregg answered in the affirmative. At sentencing, the court imposed a requirement that Gregg register as a felony firearm offender.

¶37 On this record, it is clear that Gregg was affirmatively misinformed about his duty to register as a felony firearm offender. To determine whether registration is a direct or collateral consequence, we turn to cases addressing the analogous sex offender registration.

¶38 In State v. Ward, one of the defendants challenged the sex offender registration statute, arguing he was not informed of the requirement in his plea agreement. The defendant was released from confinement before the registration statute went into effect. Our Supreme Court considered whether there was a constitutional duty to advise a defendant of the requirement to register as a sexual offender at the time of his guilty plea. The court concluded there was no duty because "[a]lthough the duty to register flows from [the defendant's] conviction for a felony sex offense, it does not enhance [the defendant's] sentence or punishment."

"Because registration as a sex offender does not alter the standard of punishment, we hold the duty to register is a collateral, and not a direct, consequence of a guilty plea." Consistent with Ward, registration as a felony firearm offender does not alter the standard of punishment. The duty to register is a collateral, and not a direct, consequence of a guilty plea.

¶39 Gregg relies on A.N.J. to argue the question whether registration requirements are direct or collateral consequences is unresolved. In A.N.J., the defendant sought to withdraw his guilty plea "because, he contends, his counsel misled him about the consequences of his plea." Our Supreme Court determined although the defendant was informed that he had an obligation to register as a sex offender, he was misinformed that his conviction could be removed from his record.

¶40 In A.N.J., our Supreme Court acknowledged, "This court has never held that a preexisting automatic statutory requirement of sex offender registration is not a direct consequence of a plea, though we decided a related but different issue in State v. Ward." The court distinguished Ward on the basis that " Ward considered a statutory consequence that came into existence only after the conviction, not an existing, automatic statutory consequence."

¶41 But ultimately the court determined "since [the defendant in A.N.J. ] was correctly informed that he had an obligation to register as a sex offender, it is unnecessary for us to decide whether a current statutory duty to register as a sex offender is a direct consequence of a plea for the purposes of establishing whether a plea was involuntarily made." In these circumstances, Ward 's thoughtful emphasis on whether the consequence enhances the sentence or punishment is compelling. Registration as a felony firearm offender does not alter the standard of punishment, even when automatically imposed. The felony firearm registration requirement is a collateral consequence of pleading guilty.

¶42 Gregg contends "regardless of whether the registration requirement is characterized as a 'direct' or 'collateral consequence,' the result is the same because [Gregg] was positively misinformed." But affirmative misinformation about a collateral consequence does not automatically render a guilty plea involuntary. Affirmative misinformation about a collateral consequence may create a manifest injustice "if the defendant materially relied on that misinformation when deciding to plead guilty."

¶43 Gregg does not claim that the misinformation concerning the firearm registration requirement materially influenced his decision to plead guilty. And the record on appeal does not include any facts regarding how he arrived at his decision to plead guilty. We conclude, on this record, this misinformation did not render Gregg's plea involuntary and does not constitute manifest constitutional error.

¶44 Therefore, we affirm.

WE CONCUR:

Smith, J.

Andrus, J.

      Ch. 9.94A RCW.

      Clerk's Papers (CP) at 14-15.

      CP at 3.

      RCW 9.94A.585(1).

      State v. Ramos, 187 Wash.2d 420, 433, 387 P.3d 650 (2017) (quoting State v. Williams, 149 Wash.2d 143, 147, 65 P.3d 1214 (2003) ).

      RCW 9.94A.535.

      RCW 9.94A.535(1).

      Ramos, 187 Wash.2d at 433, 387 P.3d 650.

      RAP 2.5(a)(3).

      U.S. CONST. amend. VIII.

      543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

      Id. at 569-70, 125 S.Ct. 1183 (alteration in original) (quoting Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993) ).

      Id. at 578, 125 S.Ct. 1183.

      560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

      567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

      Id. at 480, 132 S.Ct. 2455.

      Id.

      187 Wash.2d 420, 434, 387 P.3d 650 (2017).

      Id. at 434-35, 387 P.3d 650 (emphasis added).

      Id. at 436-37, 387 P.3d 650.

      Id. at 443, 387 P.3d 650.

      Id. at 437, 387 P.3d 650.

      Appellant's Br. at 24.

      188 Wash.2d 1, 391 P.3d 409 (2017).

      Id. at 21, 391 P.3d 409.

      See Ramos, 187 Wash.2d at 436-37, 387 P.3d 650 ("Miller does not require that the State assume the burden of proving that a standard range sentence should be imposed, rather than placing the burden on the juvenile offender to prove an exceptional sentence is justified.").

      193 Wash.2d 169, 438 P.3d 133 (2019).

      Id. at 171, 438 P.3d 133.

      Id. at 175-76, 438 P.3d 133 (quoting Houston-Sconiers, 188 Wash.2d at 9, 391 P.3d 409 ).

      State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015) ; State v. Hart, 404 S.W.3d 232 (Mo. 2013) ; Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410 (2017) ; Davis v. State, 415 P.3d 666 (Wyo. 2018).

      State v. Bassett, 192 Wash.2d at 78, 428 P.3d 343 (alterations in original) (quoting State v. Roberts, 142 Wash.2d 471, 506, 14 P.3d 713 (2000) ).

      Ramos, 187 Wash.2d at 454, 387 P.3d 650 (quoting State v. Pugh, 167 Wash.2d 825, 835, 225 P.3d 892 (2009) ).

      Id.

      198 Wash. App. 714, 394 P.3d 430 (2017).

      Id. at 743, 394 P.3d 430.

      Appellant's Br. at 28.

      Report of Proceedings (RP) (Dec. 14, 2017) at 675-77.

      Id. at 688.

      Id.

      See RAP 2.5(a)(3) ("The appellate court may refuse to review any claim of error which was not raised in the trial court," but a party may raise a "manifest error affecting a constitutional right" for the first time on appeal.).

      In re Pers. Restraint of Stoudmire, 145 Wash.2d 258, 266, 36 P.3d 1005 (2001) (citing U.S. Const. amend. 14 ; Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) ).

      We are not compelled to analyze this issue under ineffective assistance of counsel, as suggested by the State. First, Gregg does not allege ineffective assistance of counsel. And second, Gregg was arguably misled by the court and the prosecutor, not defense counsel. We rely on the "manifest injustice" analysis rather than the prejudice prong from ineffective assistance of counsel.

      State v. Kirkman, 159 Wash.2d 918, 935, 155 P.3d 125 (2007) (internal quotation marks omitted) (quoting State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999) ).

      (Emphasis added.) Although most cases addressing affirmative misinformation involve defense counsel, the duty to inform the defendant is not limited to defense counsel. We reject the State's suggestion that an appellant must raise this issue under ineffective assistance of counsel. Gregg does not allege ineffective assistance of counsel. And Gregg was arguably misled by the court and the prosecutor, not defense counsel. We rely on the "manifest injustice" analysis rather than the prejudice prong from ineffective assistance of counsel.

      State v. A.N.J., 168 Wash.2d 91, 113-14, 225 P.3d 956 (quoting State v. Barton, 93 Wash.2d 301, 305, 609 P.2d 1353 (1980) ).

      In re Pers. Restraint of Reise, 146 Wash. App. 772, 787, 192 P.3d 949 (2008).

      Id. (quoting State v. Ward, 123 Wash.2d 488, 513-14, 869 P.2d 1062 (1994) ).

      Id.

      CP at 22.

      RP (Aug. 18, 2017) at 15.

      CP at 137.

      123 Wash.2d 488, 494, 869 P.2d 1062 (1994).

      Id. at 513, 869 P.2d 1062.

      Id.

      Id. at 513-14, 869 P.2d 1062.

      Appellant's Br. at 37 (citing A.N.J., 168 Wash.2d at 114, 225 P.3d 956 ).

      A.N.J., 168 Wash.2d at 114, 225 P.3d 956.

      Id.

      Id. at 115, 225 P.3d 956.

      Id.

      Appellant's Br. at 37.

      Reise, 146 Wash. App. at 787, 192 P.3d 949.