State Of Washington, Respondent V. Elizabeth Margaret Strategos, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ELIZABETH MARGARET STRATEGOS,
Appellant.
No. 83833-4-I
DIVISION ONE
UNPUBLISHED OPINION
HAZELRIGG, J. — Elizabeth Strategos entered a guilty plea which advised
her of maximum penalties based on an inaccurate calculation of her offender
score. However, the mistake was identified and corrected prior to the imposition
of sentence. She signed a stipulation affirming that she had been advised of the
error and her corrected sentencing range, and that she wished to proceed with
sentencing. She now seeks to withdraw her plea and further challenges the
imposition of the mandatory victim penalty assessment as unconstitutionally
excessive. Finding no error, we affirm.
FACTS
Elizabeth Strategos was charged with assault in the second degree with a
deadly weapon on November 3, 2021, based on an incident that occurred a few
days prior. Pursuant to negotiations between the parties, the State filed an

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amended information on February 9, 2022, which reduced the charge to assault
in the third degree by criminal negligence. She entered a guilty plea to the
amended charge that same day. Attached to her statement of defendant on plea
of guilty was a written plea agreement, which included a statement of her criminal
history signed by Strategos, her defense attorney, and the prosecutor.
Sentencing was held on February 25, 2022, and, at the start of the
hearing, defense counsel advised the court that the parties had miscalculated
Strategos’s offender score. She indicated that the error did not change the
agreed recommendation, but it did change the standard sentencing range. The
prosecutor then provided the court with a stipulation signed by Strategos and
both attorneys, acknowledging and correcting the error, setting out the proper
standard range, and indicating that Strategos wished to proceed with sentencing.
The judge accepted the stipulation and proceeded to sentence Strategos
after confirming the correct offender score of two and a standard range of 4-12
months of incarceration. However, the trial court rejected the parties’ joint
recommendation of nine months in jail and imposed a high end sentence of 12
months, based on the nature of the crime and the “danger that Ms. Strategos
posed to these people.” The court found Strategos was indigent and, on that
basis, waived all non-mandatory fees. The mandatory $500 victim penalty
assessment (VPA)1 was imposed.
Strategos timely appealed.
1 Trial courts, and different panels of this court, have alternately referred to the mandatory
fee imposed pursuant to RCW 7.68.035 as the “victim penalty assessment,” VPA, or “crime victim
assessment,” CVA. The parties here use VPA, so we also use that terminology.

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ANALYSIS
I. Strategos is not entitled to withdrawal of her guilty plea
Strategos asserts she is entitled to either withdrawal of her guilty plea, or
“specific performance,”2 based on inaccurate advice as to her offender score and
standard sentencing range, arguing it rendered her guilty plea involuntary.
To comport with due process, a trial court may only accept a guilty plea
that is made knowingly, voluntarily, and intelligently. Boykin v. Alabama, 395
U.S. 238, 241-42, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “A knowing,
voluntary, and intelligent guilty plea requires a meeting of the minds.” State v.
Mendoza, 157 Wn.2d 582, 590, 141 P.3d 49 (2006). When a guilty plea is based
on incorrect information regarding a direct consequence of the plea, it may be
deemed involuntary. Id. at 591. Accordingly, if a defendant enters a guilty plea
based on a miscalculation of their offender score which results in an incorrect
higher standard range, the defendant may move to withdraw the plea. Id. at 591-
92.
“However, if the defendant was clearly informed before sentencing
that the correctly calculated offender score rendered the actual
standard range lower than had been anticipated at the time of the
guilty plea, and the defendant does not object or move to withdraw
the plea on that basis before he is sentenced, the defendant waives
the right to challenge the voluntariness of the plea.”
Id. at 592.
2 The joint recommendation of the parties was for a sentence of nine months in jail, which
would have been a low end sentence under the mistaken range. The court ultimately imposed a
sentence of 12 months in jail, which was the high end of both the erroneous and corrected
ranges.
Because the prosecutor urged the court to impose nine months pursuant to the original
plea agreement, and, more critically, because the judge has broad discretion to disregard all
recommendations when imposing a sentence, it is unclear how specific performance would
remedy the asserted error here.

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Strategos expressly argues that the trial court “refused to allow” her to
withdraw her plea after she “expressed a preference” to do so just prior to the
imposition of sentence. However, the record establishes two critical facts fatal to
Strategos’s claims on this issue: first, she did not seek to withdraw her guilty
plea, so the court did not refuse any such request, and second, her signed
stipulation expressly indicated that she wished to proceed with sentencing.
A. Strategos did not request to withdraw her guilty plea
Strategos asserts that she sought withdrawal of her guilty plea before the
court imposed the sentence and cites to the transcript of the hearing. However,
the record does not support this argument. The exchange identified by the
defense as constituting both the request to withdraw the plea, and the court’s
denial of that request, is as follows:
[Strategos]: Um, if I were to plea guilty to this, I would prefer it be
an Alford3 [p]lea because the whole report, to me, is fabricated and
probably coached —
I mean, she was never on top of the hood of the vehicle. They were
running away laughing —
[Defense counsel]: You have already entered a plea.
The Court: Ma’am, you have already plead [sic] guilty.
At this point, it is what I am going to sentence you to.
[Strategos]: Understood.
The Court: Do you have anything you would like to say to what I
should or shouldn’t do regarding your sentence?
3 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Our
Supreme Court adopted the Alford holding in State v. Newton, 87 Wn.2d 363, 552 P.2d 682
(1976).

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[Strategos]: I just wanted to say that I don’t know who these people
are. I have gone out of my way not to memorize any information. I
don’t know their names. And I do not want any contact with them
whatsoever in the future.
The Court: All right. Anything else?
[Strategos]: No, ma’am.
In briefing, the defense variously characterizes this exchange as,
Strategos’s “wish,” “express[ion of] a preference,” “clearly demonstrat[ing her]
preference,” and, ultimately, her “unequivocal request to withdraw her guilty
plea.”4 At no point during this exchange, or any other portion of the sentencing
hearing, did Strategos express a preference or wish to withdraw her plea, much
less make an “unequivocal request” to do so. Rather, the record demonstrates
that Strategos was initially mistaken about the purpose of the hearing and then
corrected by her counsel and the court. When advised that she had already
entered a plea of guilty, and that the sole purpose of the instant hearing was
sentencing, she indicated only, “Understood.” In fact, she was asked by the
court if she had anything further and explicitly responded, “No, ma’am.” Because
no request to withdraw the plea was before the court, there was nothing to be “off
handedly ignored.”5
B. Strategos signed a stipulation that she wished to proceed
Strategos urges this court to conclude that the mistake as to offender
score and corresponding offender range rendered her guilty plea involuntary, and
sets out case law regarding mutual mistake and remedies. She also emphasizes
4 Appellant’s Reply Brief at 1, 3, 6, and 4.
5 Appellant’s Reply Brief at 1.

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that, “Nothing in the stipulation, or the entire record[,] establishes that Ms.
Strategos was specifically informed she could withdraw the guilty plea or her [sic]
insist on specific performance.”6 It is noteworthy that Strategos does not
challenge the validity of the signed stipulation, nor assert that counsel was
ineffective. She further offers no authority that suggests the stipulation was
required to include this particular information.
The issue before us is ultimately whether Strategos is entitled to withdraw
her plea based on the error of the parties. Strategos offers State v. Walsh as
controlling authority, but that case is distinguishable. 143 Wn.2d 1, 17 P.3d 591
(2001). Walsh pleaded guilty to rape in the second degree based on the
consideration of an incorrect standard range sentence in the plea agreement. Id.
at 3-4. At the plea hearing, Walsh’s standard range was presented as 86 to 114
months, and the prosecutor agreed to recommend a low end sentence of 86
months. Id. at 4. Before sentencing, however, it was discovered that Walsh’s
actual standard range sentence was 95 to 125 months. Id. At sentencing, the
prosecutor presented the new standard range and recommended the new low
end of 95 months. Id. at 5. Walsh was neither advised of the higher standard
range nor aware of the prosecutor’s changed recommendation; “There was
simply no discussion of the matter at all.” Id. Walsh did not move to withdraw his
plea and was given an exceptional 136-month sentence. Id. For the first time,
on appeal, Walsh argued that his plea was involuntary and that he was entitled to
withdraw it. Id. at 6. Our Supreme Court agreed, noting that, “[Walsh] was never
6 Appellant’s Reply Brief at 9.

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even offered an opportunity to withdraw his plea,” and “the new standard range
was not brought to his attention at the sentencing hearing.” Id. at 7. Accordingly,
the court held that the plea agreement was not voluntary and that Walsh was
entitled to challenge its validity for the first time on appeal. Id. at 4. Unlike
Walsh, who was unaware of the miscalculation and faced a higher standard
range than agreed to, Strategos was informed that her offender score had been
incorrectly calculated and that her standard range sentence was lower than
represented in the plea agreement.
The State relies on State v. Mendoza in support of its argument that
Strategos waived her right to challenge the plea as involuntary. 157 Wn.2d 582,
141 P.3d 49 (2006). Mendoza’s offender score was incorrectly listed as seven in
his plea statement, and that incorrect score was relied upon when negotiating the
agreement. Id. at 584. As an offender score of seven would have resulted in a
standard range of 51 to 60 months, the State agreed to recommend 60 months.
Id. However, a sentencing report showed that Mendoza’s actual offender score
was six, resulting in a standard range of 41 to 54 months. Id. Accordingly, at
sentencing, the State requested 54 months. Id. at 585. Mendoza did not object
to the State’s revised recommendation or raise any concern regarding his
offender score or the lower standard range. Id. On review, the issue was
whether the incorrect standard range sentence provided on the plea agreement
rendered the plea involuntary “when the defendant is told after his plea is entered
that he faces a lower standard range.” Id. at 590. First, the court held that a
guilty plea may be deemed involuntary when based on incorrect sentencing

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consequences, “regardless of whether the actual sentencing range is lower or
higher than anticipated.” Id. at 591. Second, the court explained that “when the
defendant is informed of the less onerous standard range before he is sentenced
and given the opportunity to withdraw the plea,” the defendant may waive the
right to challenge his guilty plea on appeal. Id. As Mendoza was advised of the
mistake before being sentenced, and did not object to the lower standard range
or move to withdraw his plea as involuntary, the court held that he had waived his
right to raise the issue on appeal. Id. at 592.
However, neither Walsh nor Mendoza involved a signed stipulation
expressing the intent of the defendant to proceed with sentencing once the error
had been identified and corrected. The stipulation at issue here is handwritten
on a form “Order on Criminal Motion” and states:
This Court, having heard a motion that the parties improperly
calculated the defendant’s score as a “3” when it should be a “2,”
which reduces the standard range to 4-12 months. The defendant
has been advised of this error and still wishes to proceed to
sentencing.7
Below the title of the order is a handwritten notation “Stipulation/Order” and the
signatures of Strategos, her defense counsel, the prosecuting attorney, and the
sentencing judge all appear at the bottom of the document.
It was undisputed at sentencing, and now on appeal, that there was a
mutual mistake as to the applicable standard range. The parties appear to
similarly agree that the error was corrected before the court imposed its
sentence. The record demonstrates that Strategos signed a stipulation that
7 The italicization in the quoted text represents the portion of the stipulation that is
handwritten on the standardized court form.

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explicitly indicated that she “still wishe[d] to proceed to sentencing.” Strategos
does not assign error to the court’s acceptance of the stipulation, which suggests
that she concedes its validity. In light of this record, she fails to demonstrate
entitlement to withdrawal of her guilty plea.
II. The VPA is not unconstitutionally excessive
Strategos asserts that the imposition of the VPA after the court’s finding of
indigency violates the excessive fines clauses of the state and federal
constitutions. However, the State properly notes in its response brief that a panel
of this court rejected the same argument in State v. Tatum, 23 Wn. App. 2d 123,
514 P.3d 763 (2022). Strategos did not respond to this argument or otherwise
address Tatum in her reply brief.
We follow our own analysis and holding in Tatum and conclude that the
VPA is not unconstitutionally excessive and the trial court did not err by imposing
this mandatory fine.
Affirmed.
_
WE CONCUR: