March 22, 2002

The Washington State Supreme Court adopted the following amendments to the CrRLJ 4.2(g) guilty plea form and attachments.

1. CrRLJ 4.2(g) guilty plea form.

   1. Paragraph 6(a):

      Change the word "fine" to "monetary penalty". The new term is more inclusive, covering the diverse labels assigned to the monetary penalties such as fine, assessment and fee.

   2. Paragraph 6(d):

      Modify paragraph 6(d) as follows:

      The judge may place me on probation for up to five years if I am sentenced under RCW 46.61.5055 or up to two years for all other offenses and impose conditions of probation. If the court orders me to appear at a hearing regarding my compliance with probation and I fail to attend the hearing, the term of probation will be tolled until I appear before the court on the record.

      The new language at the end of the paragraph is based upon Chapter 94 Laws of 2001 (ESSB 5970), amending RCW 3.66.067, .068, RCW 35.20.255, RCW 3.50.320, .330 by adding:

      "...A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant's compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record...."

      Although the probation tolling provision is arguably a collateral consequence, the information is included in the guilty plea form because the tolling provision reflects new legislation and is an important consequence.

   3. Paragraph 6(g):

      Change the first sentence to:

      The crime of ___________________ has a mandatory minimum sentence of ___________________ days in jail and $_________ monetary penalty.

      The addition of space for the number of days in jail and for the monetary penalty more clearly notifies the defendant of the mandatory minimum sentence.

   4. Paragraph 6(i):

      Change Paragraph 6(i) as follows:

      This plea of guilty will result in suspension or revocation of my driver's license driving license or privilege by the Department of Licensing for a period of ___________. This period may not include suspension or revocation based on other matters. If I have a driver's license, I must now surrender it to the judge.

      The terms "driving license or privilege" replaces "driver's license" to more accurately reflect the privilege that is suspended or revoked. The remaining changes allow for a statement of the specific length of suspension or revocation for the current offense while also notifying the defendant that the actual suspension or revocation may vary depending upon other matters. Other variables include the defendant's driving record, the order in which the Department of Licensing (DOL) receives the current order of suspension or revocation and other variables based upon DOL procedures.

   5. Paragraph 6(k):

      Add the following new paragraph 6(k):

      If this crime involves a drug offense, my eligibility for state and federal education benefits will be affected. 20 U.S.C. § 1091(r).

      This new paragraph is based upon 20 U.S.C. § 1091(r), which states:

      20 U.S.C. § 1091(r)(1) In general. A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this title during the period beginning on the date of such conviction and ending after the interval specified in the following table:

      If convicted of an offense involving:

      The possession of a controlled substance:

      First offense	Ineligible 1 year
      Second offense	Ineligible 2 years
      Third offense	Ineligible indefinitely

      The sale of a controlled substance:

      First offense	Ineligible 2 years
      Second offense	Ineligible indefinitely

      This federal statutory consequence is a direct consequence of which a defendant must receive notice based upon the related holding in a recent 9^th Circuit Court of Appeals case. In the case United States v. Littlejohn, 224 F. 2d 960 (2000), the 9^th Circuit Court of Appeals held that the effect of 21 U.S.C. § 862a is a direct consequence of a guilty plea of which a defendant must be informed. In reaching it's holding, the Court of Appeals stated that:

      "...Under section 862a, prior convictions are irrelevant. Once a person is convicted for any offense `classified as a felony by the law of the jurisdiction involved...which has as an element the possession, use, or distribution of a controlled substance,' that person is immediately ineligible for certain types of social security assistance and food stamp benefits. Unlike subsection 862(a), section 862a requires no measure of judicial clairvoyance to determine applicability. Section 862a's consequence is automatic, direct, and does not fit within the exception carved out by Maree and Selfa [the court is not aware at the plea hearing of the facts necessary to determine the application of the consequence]." United States v. Littlejohn, 224 F. 2d 960, 969.

      Applying the same rational to 20 U.S.C. § 1091(r), regarding education benefits, one reaches the same conclusion. Pursuant to 20 U.S.C § 1091(r)(1) a student loses eligibility for education benefits when the person is convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance. The loss of benefits is automatic, direct and doesn't require the court to know facts that are not known at the hearing on the guilty plea.

      The remaining subparagraphs in paragraph 6 are renumbered.

   6. Paragraph 6(l):

      This paragraph, regarding consequences for driving while under the influence of alcohol and/or being in actual physical control of a vehicle while under the influence of alcohol and/or drugs is modified to allow courts to select between alternative check box options for notifying the defendant of the related penalties. The portion of the last sentence after "subject to" is carried over to the next line and preceded by a check box. On the next line "OR" separates the second check box option that begins on the third line. The alternative check box options appear as follows:

      [ ] the penalties described in Attachment "A".

      OR

      [ ] these penalties: The mandatory minimum sentence of ______________ days in jail, _________ days of electronic home monitoring and $ _________ monetary penalty. I will also be required to drive only motor vehicles equipped with an ignition interlock device for _______ years. My driving privilege will be suspended or revoked by the Department of Licensing for the period of time stated in paragraph 6(i). In lieu of the minimum jail term, the judge may order me to serve ________________ days in electronic home monitoring. If I do not have a dwelling, telephone service, or any other necessity to operate electronic home monitoring; if I live out of state; or if the judge determines I would violate the terms of electronic home monitoring, the judge may waive electronic home monitoring and impose an alternative sentence which may include additional jail time, work crew or work camp.

      The alternative methods of notifying the defendant of DUI penalties are provided to satisfy constitutional notice requirements and to provide flexibility to accommodate local custom and practice. The sentencing provisions in Attachment "A" and in the second check box option are based upon RCW 46.41.5055.

   7. Paragraph 6(m):

      Pursuant to RCW 10.01.200, the court must provide written notification of registration requirements to defendants charged with a sex offense or a kidnapping offense. The notice must be included in the guilty plea form.

      Change paragraph 6(m) [formerly paragraph 6(l)] as follows:

      I understand that if this crime involves sexual misconduct with a minor in the second degree or attempt, solicitation or conspiracy to commit a sex offense, or a kidnapping offense involving a minor, communicating with a minor, or one of the other offenses listed as defined in RCW 9A.44.130, I will be required to register with the county sheriff as described in Attachment "B".

      The changes to paragraph 6(m) are based upon the changes in the definition of "sex offender" for purposes of sex offender registration found in RCW 9A.44.130(9) as amended by Chapter 95 Laws of 2001 (SSB 4014) § 2:

      (9) For the purpose of RCW 9A.44.130, 10.01.200, 43.43.540, 70.48.470, and 72.09.330:

      (a) "Sex offense" means:

      (i) Any offense defined as a sex offense by RCW 9.94A.030;

      (ii) Any violation under RCW 9A.44.096 (sexual misconduct with a minor in the second degree);

      (iii) Any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a sex offense under this subsection; and

      (iv) Any gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030 or this subsection.

      (b) "Kidnapping offense" means:

      (i) The crimes of kidnapping in the first degree, kidnapping in the second decree, and unlawful imprisonment, as defined in chapter 9A.40 RCW, where the victim is a minor and the offender is not the minor's parent;

      (ii) Any offense that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a kidnapping offense under this subsection (9)(b); and

      (iii) Any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a kidnapping offense under this subsection (9)(b).

      RCW 9.94A.030(37) as amended by Chapter 95 Laws of 2001 (SSB 5014) § 1 contains the following definition of "sex offense":

      (37) "Sex offense" means:

      (a)(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(11);

      (ii) A violation of RCW 9A.4.020;

      (iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.070 or 9.68A.080; or

      (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

      (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection;

      (c) A felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135; or

      (d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.

      Based upon the above referenced 2001 statutes, the only misdemeanor offenses to which the registration requirement applies are sexual misconduct with a minor in the second degree [RCW 9A.44.096] and attempt, solicitation or conspiracy to commit a sex offense or kidnapping offense as defined in RCW 9A.44.130. Consequently, paragraph 6m was updated to reflect statutes effective in 2001.

      URGENT NOTICE: The 2001 Legislature deleted the registration requirements for defendants convicted of gross misdemeanor violations of RCW 9.68A.090, communication with a minor for immoral purposes. The 2002 Legislature restored the registration requirement for those defendants in Chapter 31 Laws 2002 (SB 6408) which became effective on March 12, 2002. Chapter 31 Laws of 2002 amended RCW 9A.44.130(9)(a), containing the definition of "sex offense" for registration requirements, by adding a new subsection "(iii)":

      9A.44.130(9)(a)(iii) "Any violation under RCW 9.68A.090 (communication with a minor for immoral purposes)..."

      You are encouraged to add the crime of communication with a minor for immoral purposes to the guilty plea form, immediately. The crime will be restored to paragraph 6(m) and to Attachment "B" in the next revision of the CrRLJ 4.2(g) guilty plea form.

2. CrRLJ 4.2(g) Guilty Plea, Attachment "A."

   Most of the changes to Attachment "A" are ministerial changes that conform Attachment "A" to the DUI Sentencing Grid published by the Administrative Office of the Courts. The ministerial changes include deleting references to Session Laws and effective dates. There are also a couple of changes based upon 2001 legislative changes.

   1. DOL heading, page 1:

      On page 1, change the head for the Department of Licensing as follows:

      Department of Licensing - 1999 Administrative Sanctions and Reinstatement Provisions (as amended through June 1, 2001)

   2. First table heading:

      In the first table on page 1, change the heading in the first row to:

      ADMINISTRATIVE SANCTIONS - RCW 46.20.3101 (Effective January 1, 1999)

   3. Administrative Sanctions table, second row:

      In the Administrative Sanctions table, second row, third column, change the parenthetical phrase as follows:

      "...(Suspension Revocation consecutive to any court ordered suspension as a result of same incident)

   4. Note below Administrative Sanctions table:

      In the Note paragraph below the Administrative Sanctions table, insert "(See RCW 46.61.5055 and 46.20.355)" after the first sentence. After the last sentence, insert "(See RCW 46.20.355 and 10.05.060)."

   5. Requirements for Reinstatement of Driving Privilege table:

      In the Requirements for Reinstatement of Driving Privilege table, in the first column, after the heading "Suspended License*" insert "(RCW 46.20.311)." In the second column, after the heading "Revoked License*" insert "(RCW 46.20.311)."

   6. Requirements for Reinstatement of Driving Privilege table, second row:

      In the columns for "Suspended License" and "Revoked License," after "Pay $150 driver's license reissue fee," insert "(Effective June 11, 1998)."

   7. Court DUI Sentencing Grid heading:

      Change the Court DUI Sentencing Grid heading as follows:

      COURT 1999 DUI SENTENCING GRID (RCW 46.61.5055 as amended through June 1, 2001)

   8. "Prior Offense":

      In the paragraph beginning with " `Prior Offense' includes the following," delete "as amended by Ch. 211 and 214 laws of 1998" in the parenthetical phrase.

   9. Amended Convictions:

      In the paragraph beginning with "Amended Convictions for the following," delete "previously 46.61.525.1" from the parenthetical phrase after "(1) Neg. Driving 1^st".

   10. Deferred Prosecution:

       In the paragraph beginning with "Deferred Prosecution Granted for the following," delete "previously 46.61.525.1" from the parenthetical phrase after "(3) Neg. Driving 1^st".

   11. Court DUI Grid table, first row:

       In the Court DUI Grid table, in the first row beginning with " `Within seven years' ", delete "as amended by Ch. 207, laws of 1998" from the parenthetical phrase.

   12. Court DUI Grid table, fifth row:

       In the Court DUI Grid table, fifth row, change the information in the parenthetical phrases about fines in the second, third and fourth columns as follows:

       Column 2: $685 735 total minimum fine w/statutory assessments****)

       Column 3: $925 975 total minimum fine w/statutory assessments****)

       Column 4: $1,725 1,775 total minimum fine w/statutory assessments****)

       For the legal basis for these changes please see II. Q, below.

   13. Court DUI Grid table, twelfth row:

       In the Court DUI Grid table, twelfth row, change the information in the parenthetical phrases about fines in the second, third and fourth columns as follows:

       Column 2: $925 975 total minimum fine w/statutory assessments****)

       Column 3: $1,325 1,375 total minimum fine w/statutory assessments****)

       Column 4: $2,525 2,575 total minimum fine w/statutory assessments****)

       For the legal basis for these changes please see section II. Q, below.

   14. Electronic Home Monitoring:

       Change the paragraph beginning with "Electronic Home Monitoring" as follows:

       For first time offenders, the court may impose electronic home monitoring in lieu of the mandatory minimum jail time. the electronic home monitoring option in lieu of the mandatory minimum jail time is effective 6/11/98. effective 3/16/99, courts Courts may waive electronic home monitoring in writing stating the reasons therefore and facts relief upon. If EHM is waived, the court is required to impose an alternative sentence with similar punitive consequences. (chapter 5, Laws of 1999 RCW 46.61.5055).

   15. Ignition Interlock:

       Change the paragraph beginning with "Ignition Interlock" by deleting the second sentence "Note: RCW 46.20.720(3)(a) and (3)(b) are effective 1/1/99." Also, delete the following text as the end of the third sentence: "as amended Ch. 331, laws of 1999, effective 5/14/99".

   16. Mandatory conditions of probation:

       In the paragraph beginning with "Mandatory conditions of probation if any jail time is suspended," delete the following text from the end of the parenthetical phrase: "...as amended by Ch. 206, Laws of 1998, effective 6/11/98, See also Ch. 56, Laws of 1999, effective 7/25/99."

   17. Local Government Criminal Justice Funding penalty:

       The following new penalty information based upon RCW 46.64.055, is inserted below the paragraph on "Mandatory conditions of probation if any jail time is suspended":

       ****Local government Criminal Justice Funding penalty: Effective July 22, 2001, the court must impose an additional local government criminal justice funding penalty of $50. RCW 46.64.055.

       The $50 local government criminal justice funding penalty and the astericks "****" directing readers to the text on the new penalty are integrated into the Court DUI Sentencing Grid table as indicated in sections II. L. and M., above.

3. CrRLJ 4.2(g) Attachment "B" sex offender registration requirements:

   Pursuant to RCW 10.01.200, the court must give written notice of the sex offender registration requirements to defendants in guilty plea forms. RCW 10.01.200 states:

   The court shall provide written notification to any defendant charged with a sex offense or kidnapping offense of the registration requirements of RCW 9A.44.130. Such notice shall be included on any guilty plea forms and judgments and sentence forms provided to the defendant.

   Pursuant to this directive the following modifications update the required offender registration notice requirements in Attachment "A":

   1. Introductory information:

      Change the initial descriptive sentence as follows:

      ATTACHMENT A: Paragraph 6 (lm); sexual misconduct with a minor in the second degree or attempt, solicitation or conspiracy to commit a sex offense, or a kidnapping offense involving a minor, as defined in RCW 9A.44.130. communicating with a minor and other offenses listed in RCW 9A.44.

      And, change the first sentence in the first paragraph as follows:

      Because this crime involves sexual misconduct with a minor in the second degree or attempt, solicitation or conspiracy to commit a sex offense, or a kidnapping offense involving a minor as defined in RCW 9A.44.130 , communicating with a minor or other offense listed in RCW 9A.44, I will be required to register with the sheriff of the county of the state of Washington where I reside.

      Both changes are based upon the definition of "sex offense" for registration purposes found in RCW 9A.44.130(9) as amended by Chapter 95 Laws of 2001 (SSB 4014) § 2.

      URGENT NOTICE: The 2002 Legislature restored the registration requirement for a defendant convicted of a gross misdemeanor violation of RCW 9.68A.090, communication with a minor for immoral purposes. Please see the end of section I. G. Paragraph 6(m), above, for more information.

   2. Sentence beginning with "If I lack a fixed residence...":

      Modify the paragraph beginning with "If I lack a fixed residence..." as follows:

      If I lack a fixed residence, I am required to register. Registration must occur within 24 hours of release in the county where I am being supervised if I do not have a residence at the time of my release from custody or within 14 days 48 hours, excluding weekends and holidays, after ceasing to have a fixed residence. If I enter a different county and stay there for more than 24 hours, I will be required to register in the new county. I must also report in person to the sheriff of the county where I am registered on a weekly basis if I have been classified as a risk level II or III or on a monthly basis if I have been classified as a risk level I. The weekly report will be on a day specified by the county sheriff's office, and shall occur during normal business hours. I may be required to provide a list of the locations where I have stayed during the last 7 days. The lack of a fixed residence is a factor that may be considered in determining a sex offender's risk level and shall make me subject to disclosure to the public at large pursuant to RCW 4.24.550.

      These changes are based upon RCW 9A.44.130(6) as amended by Chapter 169 Laws of 2001 (HB 1952):

      RCW 9A.44.130(6)(a) Any person required to register under this section who lacks a fixed residence shall provide written notice to the sheriff of the county where he or she last registered within forty-eight hours excluding weekends and holidays after ceasing to have a fixed residence.....

      (b) A person who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he or she is registered. The weekly report shall be on a day specified by the county sheriff's office, and shall occur during normal business hours. The county sheriff's office may require the person to list the locations where the person has stayed during the last seven days. The lack of a fixed residence is a factor that may be considered in determining an offender's risk level and shall make the offender subject to disclosure of information to the public at large pursuant to RCW 4.24.550.

   3. New paragraph regarding name changes:

      Add the following new paragraph to the end of Attachment "B":

      If I apply for a name change, I must submit a copy of the application to the county sheriff of the county of my residence and to the state patrol not fewer than five days before the entry of an order granting the name change. If I receive an order changing my name, I must submit a copy of the order to the county sheriff of the county of my residence and to the state patrol within 5 days of the entry of the order. RCW 9A.44.130(7).

      This language is derived from RCW 9A.44.130(7), which is part of the sex offender registration statute. RCW 9A.44.130(7) is reproduced below:

      A sex offender subject to registration requirements under this section who applies to change his or her name under RCW 4.24.130 or any other law shall submit a copy of the application to the county sheriff of the county of the person's residence and to the state patrol not fewer than five days before the entry of an order granting the name change. No sex offender under the requirement to register under this section at the time of application shall be granted an order changing his or her name if the court finds that doing so will interfere with legitimate law enforcement interests, except that no order shall be denied when the name change is required for religious or legitimate cultural reasons or in recognition of marriage or dissolution of marriage. A sex offender under the requirement to register under this section who receives an order changing his or her name shall submit a copy of the order to the county sheriff of the county of the person's residence and to the state patrol within five days of the entry of the order.