Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                          March 13, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29512-5-III
                                                )
                      Respondent,               )
                                                )         Division Three
       v.                                       )
                                                )
ERIC H. HUFFERD-OUELLETTE,                      )
                                                )         UNPUBLISHED OPINION
                      Appellant.                )
                                                )

       Siddoway, J.  --  Eric Hufferd-Ouellette challenges a firearm enhancement applied 

to his conviction for possession of cocaine.  He used a handgun in an attempted robbery 

and had a small amount of cocaine in his pocket at the same time.  While he concedes

that his possession and use of the handgun supported a firearm enhancement for his

armed robbery conviction, he argues that the handgun lacked the nexus to the small 

amount of cocaine he was carrying necessary to support an additional firearm 

enhancement.  

       We need not resolve the question of whether the circumstances of his crime are  

No. 29512-5-III
State v. Hufferd-Ouellette

sufficient to constitute "armed" possession of a controlled substance because the trial 

court's imposition of the firearm enhancement was supported by the second basis it 

announced for its decision:  that he pleaded to the charge and the enhancement.  While he 

earlier sought to withdraw his plea, he now seeks only reversal of the enhancement and 

remand for resentencing.  Because his plea was indivisible, partial reversal is unavailable.  

We affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       On August 6, 2006, Eric Hufferd-Ouellette burglarized a home in Stevens County, 

stealing a handgun.  He used it to commit a robbery later that day.  Three days later, he

used the handgun in an attempted carjack from Patti Irish in Wenatchee.  Ms. Irish 

struggled and called for help when he tried to pull her from her car.  Mr. Hufferd-

Ouellette abandoned the attempt and fled on foot, tossing the handgun in a nearby alley.  

When arrested a few blocks from the location of the attempted carjack, he was found to 

have a small quantity (less than one-half gram) of cocaine in his pocket, but no weapon.  

       Mr. Hufferd-Ouellette pleaded guilty in Chelan County to attempted first degree 

robbery with a firearm (count 2), unlawful possession of a firearm second degree (count 

3), unlawful possession of a controlled substance -- cocaine (count 4), and possession of a 

stolen firearm (count 5).  Firearm enhancements were applied to counts 2 and 4.  In his 

statement on his plea of guilty, he declared: 

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No. 29512-5-III
State v. Hufferd-Ouellette

       On August 9, 2006, in Chelan County, I attempted to take a car belonging 
       to Patti Irish, by attempting to remove her from the car.  I pointed a hand
       gun that was stolen from Stevens County at Ms. Irish during my attempt to 
       take her car.  At this time, I also possessed a small amount of cocaine.  At 
       this time, I had previously been convicted of a felony.  At the times I 
       committed counts 2 and 4 I was armed with a firearm.

Clerk's Papers (CP) at 159.

       Mr. Hufferd-Ouellette was sentenced in August 2007 for these crimes in Chelan 

County.  Almost a year later, he filed a motion to vacate the judgment and sentence, 

arguing that his sentence was in excess of the statutory maximum and seeking to 

withdraw his plea.  The superior court transferred the motion to this court for 

consideration as a personal restraint petition.  The State agreed that the sentences for 

counts 2 and 4 exceeded the maximum penalties but argued that the proper remedy was to 

remand for the limited purpose of correcting the judgment and sentence, failing to 

consider Mr. Hufferd-Ouellette's argument that the parties' mutual mistake as to the 

sentencing range supported withdrawal of his plea.  Both this court and the Supreme 

Court remanded the matter to the superior court to resolve the merits of his motion to 

vacate the judgment and sentence.  

       Counsel was appointed to represent Mr. Hufferd-Ouellette.  By the time of hearing

on the remanded matters, Mr. Hufferd-Ouellette did not ask the trial court to grant the 

originally-requested permission to withdraw his guilty plea.  Br. of Appellant at 3 (citing 

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Report of Proceedings (RP) at 38).  He did raise several challenges to his original 

sentence. The parties agreed that the original judgment and sentence included a 

miscalculated offender score and imposed a sentence beyond the statutory maximums; 

those errors were corrected.  The trial court rejected Mr. Hufferd-Ouellette's other 

challenges, including his argument that the nexus between the cocaine possession and the 

firearm was insufficient to uphold the firearm enhancement.  In addition to rejecting Mr. 

Hufferd-Ouellette's argument that there was an insufficient nexus, the trial court justified

imposing the enhancement on the fact that Mr. Hufferd-Ouellette had entered into a plea 

bargain, yet was not seeking to withdraw his entire plea.  RP at 28-30, 38.

       Mr. Hufferd-Ouellette timely appealed.

                                         ANALYSIS

       Mr. Hufferd-Ouellette assigns error only to the trial court's rejection of his 

challenge to the firearm enhancement to the cocaine possession count.  The relief he 

requests on appeal is not to withdraw his plea, but that we reverse the imposition of the 

firearm enhancement and remand for resentencing on grounds of an insufficient basis for 

his plea to the firearm enhancement; he argues specifically that there was an insufficient 

nexus between the crime of possession of cocaine and the firearm.  RP at 10-11.  He 

emphasizes the fact that he had no handgun at the time officers discovered his possession 

of the cocaine and the handgun was unrelated to his possession of what was only a small 

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No. 29512-5-III
State v. Hufferd-Ouellette

amount.

       CrR 4.2(f) provides that a court shall allow a defendant to withdraw the 

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

manifest injustice."  Among injustices recognized as manifest under the rule is holding a 

defendant to a plea that was involuntary.  Id. A plea cannot be considered voluntary in 

the absence of a sufficient factual basis for the plea.  In re Pers. Restraint of Evans, 31 

Wn. App. 330, 331, 641 P.2d 722, cert. denied, 459 U.S. 852 (1982).

       We review, in turn, his argument of an insufficient factual basis and the trial 

court's remedy-based refusal to grant relief.

                                               I

       CrR 4.2(d) provides, with respect to voluntariness, that 

       [t]he court shall not accept a plea of guilty, without first determining that it 
       is made voluntarily, competently and with an understanding of the nature of 
       the charge and the consequences of the plea. The court shall not enter a 
       judgment upon a plea of guilty unless it is satisfied that there is a factual 
       basis for the plea.

(Emphasis added.)  

       In In re Personal Restraint of Taylor, 31 Wn. App. 254, 640 P.2d 737 (1982), this 

court cited In re Personal Restraint of Keene, 95 Wn.2d 203, 622 P.2d 360 (1980) to 

explain the requirement that the court be satisfied of a factual basis for the plea:

              "The judge must determine that the conduct which the defendant 
       admits constitutes the offense charged in the indictment or information. . . . 

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No. 29512-5-III
State v. Hufferd-Ouellette

       Requiring this examination protects a defendant who is in the position of 
       pleading voluntarily with an understanding of the nature of the charge but 
       without realizing that his conduct does not actually fall within the charge."

31 Wn. App. at 257 (internal quotation marks omitted) (quoting Keene, 95 Wn.2d at 209).  

The factual basis requirement "helps guarantee a truly knowledgeable and voluntary 

plea," and "allow[s] a thorough and final check on the understanding of the defendant."  

Id. at 258.

       Former RCW 9.94A.602 (1983) authorizes an enhanced sentence if a defendant is 

armed with a deadly weapon at the time of the commission of the crime:

       In a criminal case wherein there has been a special allegation and evidence 
       establishing that the accused or an accomplice was armed with a deadly 
       weapon at the time of the commission of the crime, the court shall make a 
       finding of fact of whether or not the accused or an accomplice was armed 
       with a deadly weapon at the time of the commission of the crime.[1]

A firearm is a deadly weapon.  Former RCW 9.94A.602.  

       Over time, Washington decisions have clarified what it means to be "armed" for 

purposes of the statute in response to statutory amendments increasing the number of 

crimes subject to the enhancement and with due regard for the right to bear arms provided 

by the Washington Constitution.  Wash. Const. art. I, § 24. To be "armed" means more 

than having a weapon that is "readily available and accessible to his use for either 

       1 Former RCW 9.94A.602 was recodified as RCW 9.94A.825 in 2009.  Mr. 
Hufferd-Ouellette was originally sentenced in 2007.

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No. 29512-5-III
State v. Hufferd-Ouellette

offensive or defensive purposes" (a definition that this court adopted in State v. Sabala, 

44 Wn. App. 444, 448, 723 P.2d 5 (1986) and which the Washington Supreme Court 

embraced in State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)), and 

requires a nexus between the weapon and the defendant, and between the weapon and the 

crime.  State v. Schelin, 147 Wn.2d 562, 567-68, 55 P.3d 632 (2002).  The nexus between

the weapon and the defendant implicates issues of time and space.  The nexus between 

the weapon and the crime implicates issues of intent and willingness to use the weapon.

       Whether a person is armed is a mixed question of law and fact.  Id. at 565.  Here, 

there are no disputed facts, so the trial court was required to determine whether the facts 

that Mr. Hufferd-Ouellette admitted are sufficient to prove that he was armed as a matter 

of law.  Id.; Taylor, 31 Wn. App. at 259 (where court relies only on the written statement 

of the defendant on the guilty plea form, "it must ensure the facts admitted amount to the 

violation charged.  Anything less endangers the finality of the plea").  The parties'

arguments focus principally on Mr. Hufferd-Ouellette's admission in his statement on 

plea of guilty that "I pointed a hand gun that was stolen from Stevens County at Ms. Irish 

during my attempt to take her car.  At this time, I possessed a small amount of cocaine."  

CP at 159.  His separate admission that "[a]t the times I committed count[ ] 4 I was armed 

with a firearm," id., must be read either to use the word "armed" in a colloquial 

sense -- his meaning for which we do not know, but likely was only that the weapon was 

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No. 29512-5-III
State v. Hufferd-Ouellette

on his person -- or as a conclusion of law.  Either way, it is not helpful.  See, e.g., Taylor, 

31 Wn. App. at 259 (statement that defendant "was directly involved in the planning, 

carrying out the plan, and aftermath" of a specified murder was not a factual basis 
indicating awareness of the nature of the charge);2 State v. Powell, 29 Wn. App. 163, 165, 

627 P.2d 1337 (1981) (statement that "I did participate in the 1 (degree) murder" of a 

victim was a mere conclusion of law and insufficient); Evans, 31 Wn. App. at 332

(admission that "I escaped from the Tri-Cities Work Release Facility in Pasco" on a given 

date an insufficient factual basis).

       We review issues of law de novo.  

           Nexus between the weapon and the defendant: temporal requirement

       We first address Mr. Hufferd-Ouellette's argument that a defendant "must be 

armed with a deadly weapon at the time of the commission of the crime" and that he had 

discarded the handgun before being arrested and found to possess the cocaine. Br. of 

Appellant at 10.  As earlier noted, however, his statement on plea of guilty admitted that 

at the time he attempted to take Ms. Irish's car using the handgun "I also possessed a 

small amount of cocaine." CP at 159.  The possession admitted was on the charging date; 

       2 As further explained in Taylor, "a knowledge of the statute the defendant is 
accused of violating does not satisfy the constitutional requirement that the record contain 
a factual basis for the plea.  If knowledge of the offense coupled with a plea of guilty 'as 
charged in the information' was enough to support a voluntary plea, there would be no 
necessity for the record to show a factual basis for the guilty plea." 31 Wn. App. at 258.

                                               8 

No. 29512-5-III
State v. Hufferd-Ouellette

count 4 of the amended information charged that Mr. Hufferd-Ouellette "on or about the 

9th day of August, 2006, did then and there unlawfully and feloniously possess a 

controlled substance, to wit: cocaine, and in the commission of the crime the defendant or 

an accomplice was armed with a firearm." CP at 241.  

       In State v. Simonson, 91 Wn. App. 874, 881, 883, 960 P.2d 955 (1998), review 

denied, 137 Wn.2d 1016 (1999), the court held that the evidence supported a special 

finding that the defendant was armed with a deadly weapon at the time he committed 

unlawful manufacture of a controlled substance even though he was in jail when officers 

discovered evidence of his and an accomplice's unlawful manufacture of 

methamphetamine in a mobile home where firearms were also found. The court 

concluded that evidence showed that the defendant and his girl friend were committing a 

continuous offense over a six-week period of time and "[d]uring some or all of that time, 

they kept seven guns on the premises." 91 Wn. App. at 883.  Simonson's reasoning was 

rejected a year later in State v. Johnson, 94 Wn. App. 882, 895-96, 974 P.2d 855 (1999),

review denied, 139 Wn.2d 1028 (2000), in which a different division of the court held

that the deadly weapon inquiry should not include the entire span of alleged criminal 

activity, but only the time when it furthers the purpose of enhancing officer safety during 

Fourth Amendment searches and seizures.  

       The Simonson and Johnson courts' conflicting views on the temporal requirement 

                                               9 

No. 29512-5-III
State v. Hufferd-Ouellette

was presented to the Supreme Court in Schelin, 147 Wn.2d 562, in which the majority

opinion appeared to make some concession to each position.  On the one hand, it 

characterized the Johnson court as failing to recognize that the finding that Simonson was 

armed could be explained by the presence of his accomplice at the scene when the meth 

lab exploded and the crime was discovered.  Id. at 572.  It analyzed the issue in the case 

before it with respect to the defendant's proximity to the weapon at the time police 

entered his home, not any earlier time.  Id. at 573.  Finally, it declined the State's request 

to revisit the temporal requirement, which the State contended "will result in less 

protection for the general public and will exclude the use of the deadly weapon 

enhancement in cases involving continuing crimes."  Id. at 575.  Yet in addressing the 

Court of Appeals' focus in Schelin on whether the "critical time for analysis" should be 

determined by the time when the offense is committed or when police discover it, it 

characterized the focus as "misdirected," because "there is no reason to believe the 

Legislature intended the statute to solely protect police."  Id. at 573.

       Any ambiguity was clarified by State v. O'Neal, 159 Wn.2d 500, 504, 150 P.3d 

1121 (2007), in which the court held that "[t]he defendant does not have to be armed at 

the moment of arrest to be armed for purposes of the firearms enhancement." It held that 

the State could establish the required nexus between the defendant and the weapon by 

presenting evidence that a deadly weapon was easily accessible and readily available at 

                                               10 

No. 29512-5-III
State v. Hufferd-Ouellette

the time of the crime, and need not establish "with mathematical precision the specific 

time and place that a weapon was readily available and easily accessible."  Id. at 504-05.

       In light of Mr. Hufferd-Ouellette's admission that he possessed the handgun and 

the cocaine at the same time on the charging date, the mere fact that he discarded the 

weapon before being caught does not negate the nexus between him and the weapon. 

                            Nexus between the weapon and crime

       Mr. Hufferd-Ouellette argues that the evidence was insufficient to establish the 

required nexus between the handgun and the possession of a small amount of cocaine.  

He argues that there is no substantial evidence that he was using the gun to protect the 

cocaine.  

       Here, our guidance from the Supreme Court has been divided and increasingly

refined, making it important to heed the court's most recent decisions. In Valdobinos, 

decided before the nexus requirement was articulated, a unanimous court found that the

trial court should not have instructed the jury on a deadly weapon charge based solely on 

evidence that officers searching the defendant's mobile home found an unloaded rifle 

under his bed in addition to 846 grams of cocaine. 

       In Schelin, officers executing a search warrant for the defendant's home found 

substantial evidence of a marijuana grow operation as well as a loaded revolver located 

6 to 10 feet away from where the defendant was standing when police entered the home.  

                                               11 

No. 29512-5-III
State v. Hufferd-Ouellette

Mr. Schelin made no attempt to use the weapon against the officers.  He was charged 

with possession of a controlled substance with intent to manufacture, possession with 

intent to deliver, and with deadly weapon enhancements on both counts.  A four-member 

plurality held that while the defendant's right to bear arms in his home was 

constitutionally protected, "that right ceases when the purpose of bearing arms is to 

further the commission of a crime." 147 Wn.2d at 575.  Justices in the plurality affirmed

the conviction where "[t]he jury was entitled to infer that he was using the weapon to 

protect his basement marijuana grow operation."  Id. at 574. The fifth vote to affirm was 

based on different reasoning, however; Chief Justice Alexander's concurring opinion 

expressed his view that the jury instruction was flawed because it provided no guidance 

on the nexus requirement. Nonetheless, because the jury instruction was not challenged 

on appeal, he too would affirm.  Id. at 577 (Alexander, C.J., concurring).

       The dissent found the evidence insufficient to establish the required nexus between 

the defendant and the crime, stating "merely establishing a firearm was present on 

premises where an ongoing crime was committed is insufficient as a matter of law to 

justify enhancing the sentence for the substantive crime."  Id. at 586 (Sanders, J., 

dissenting).  Two justices concurring in the dissent agreed that the evidence was 

insufficient under Valdobinos and progeny, observing that "[t]he question whether 

Schelin could have armed himself with the seized firearm is irrelevant" in light of the 

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No. 29512-5-III
State v. Hufferd-Ouellette

absence of any evidence that he used it in any manner likely to produce death.  Id. at 578

(Johnson, J., concurring in the dissent) (emphasis added).

       In State v. Easterlin, 159 Wn.2d 203, 209, 149 P.3d 366 (2006), the Supreme 

Court accepted review in a case remarkably similar to this one, primarily to address the 

conclusion of the Court of Appeals that in an actual possession case, the protections of 

the nexus requirement become redundant.  State v. Easterlin, 126 Wn. App. 170, 174, 

107 P.3d 773 (2005).  Mr. Easterlin was discovered sitting in his car, asleep and high, 

with a 9 mm pistol in his lap and a loaded 9 mm magazine on the seat next to him.  159 

Wn.2d at 207.  He admitted in connection with a plea bargain that he had simultaneous 

possession of a firearm and rock cocaine.  The case is also similar in that Mr. Easterlin 

sought only to withdraw his plea to the firearms enhancement, not to withdraw his plea 

entirely, a remedy whose availability the court observed was "far from clear."  Id. at 208 

n.1.  The court was not required to reach "these perplexities," however.  Id.

       A majority of the Easterlin court rejected the appellate court's conclusion that in 

cases of actual possession, the State is never required to establish nexus, although it 

granted that "in actual possession cases it will rarely be necessary to go beyond the 

commonly used 'readily accessible and easily available' instruction."  Id. at 209.  

Examples it provided of when a defendant actually possessing a deadly weapon might 

nonetheless not be armed were where he or she possessed a ceremonial weapon, a prop, a 

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No. 29512-5-III
State v. Hufferd-Ouellette

knife in a picnic basket, or a rifle carried in a farmer's gun rack, but it did not attempt to 

identify the defining characteristic of its examples. It concluded in Mr. Easterlin's case, 

that "[s]o long as the facts and circumstances support an inference of a connection 

between the weapon, the crime, and the defendant, sufficient evidence exists," and "[i]n 

this case that inference is clearly supportable."  Id. at 210. 

       It was the Supreme Court's 2007 decision in State v. Brown, 162 Wn.2d 422, 173 

P.3d 245 (2007) that gave the trial court the greatest pause in resentencing Mr. Hufferd-

Ouellette.  In Brown, as characterized by the dissenters, the majority identified "a new 

condition to the nexus requirement, holding that [the required nexus] is not satisfied 

unless there is evidence that the defendant intended to or was willing to use the weapon 

in furtherance of the offense." Id. at 438 (Madsen, J., dissenting).

       Brown involved a burglary during which the defendant took guns out of a closet, 

laid them on the bed, and then left the home without them. But the majority's stated 

reasoning for concluding that the defendant was not armed was not specific to the gun 

being loot of a burglary; it was more general.  It reasoned that whether the defendant 

handled the gun during the crime "in a manner indicative of an intent or willingness to 

use it in furtherance of the crime" was a necessary part of the nexus analysis.  

Responding to a dissent argument that its concern with a defendant's intent or willingness 

to use the gun was unprecedented, the majority insisted that "the defendant's intent or 

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No. 29512-5-III
State v. Hufferd-Ouellette

willingness to use [the deadly weapon] is a condition of the nexus requirement that does, 

in fact, appear in Washington cases," relying on Schelin and State v. Eckenrode, 159 

Wn.2d 488, 150 P.3d 1116 (2007) and characterizing Simonson, as well, as explained by 

the reasonable inference that the defendant had a large number of loaded weapons for a 

reason: "'to defend the manufacturing site in case it was attacked.'" Brown, 162 Wn.2d 

at 434 & n.3 (quoting Simonson, 91 Wn. App. at 883).  The Supreme Court's decision a 

year later in State v. Neff, 163 Wn.2d 453, 181 P.3d 819 (2008) similarly held, with 

respect to a continuing crime, that a nexus obtains if the weapon was "'there to be used,'"

which it held is a fact-specific inquiry.  163 Wn.2d at 462 (quoting State v. Gurske, 155 

Wn.2d 134, 138, 118 P.3d 333 (2005)).

       Here, Mr. Hufferd-Ouellette had the gun at the same time he had a small amount 

of cocaine in his pocket.  He tossed the gun away after the armed robbery went bad.  It is 

undisputed that he was criminally culpable in having and using the handgun; indeed, he 

was convicted of, and does not challenge, four charges related to his possession and use 

of the gun: he was convicted in Stevens County for first degree burglary, for stealing the 

gun; he pleaded guilty in the action below to both unlawful possession of a stolen firearm 

and unlawful possession of a firearm in the second degree; and he pleaded guilty below to 

a firearm enhancement for the armed robbery.  He challenges only the fifth punishment 

sought by the State: the additional 18 months' confinement for being armed in connection 

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No. 29512-5-III
State v. Hufferd-Ouellette

with his possession of cocaine.

       Had Mr. Hufferd-Ouellette been tried, the trier of fact might well have heard 

fleshed-out evidence from which it could draw reasonable inferences.  We have only Mr. 

Hufferd-Ouellette's bare admission that he had a small amount of cocaine and the gun at 

the same time, but also tossed the gun away while possessing and retaining the cocaine. 

"In determining whether a factual basis exists for a plea, the trial court need not be 

convinced beyond a reasonable doubt that the defendant is guilty." State v. Saas, 118 

Wn.2d 37, 43, 820 P.2d 505 (1991).  "Rather, a factual basis exists if there is sufficient 

evidence for a jury to conclude that the defendant is guilty." Id. 

       Under Brown, it is a condition of the nexus requirement that Mr. Hufferd-

Ouellette's possession of the handgun was with the intent and willingness to use it to

protect his possession of the half gram of cocaine.  The State argues that Mr. Hufferd-

Ouellette "used the weapon to prevent his apprehension because possessing cocaine 

would cause additional criminal punishment." Br. of Resp't at 6.  But given the 

evidentiary standard as articulated in Brown, we question whether the admitted facts 

support that use of the gun, or whether it is speculation.  It violates the Washington 

Constitution to draw an adverse inference from a defendant's mere possession of a 

weapon.  State v. Rupe, 101 Wn.2d 664, 707, 683 P.2d 571 (1984).  

       We addressed this sufficiency of the evidence issue first because it was the issue 

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No. 29512-5-III
State v. Hufferd-Ouellette

briefed by the parties.  But we find we can more clearly resolve this case by addressing 

the second basis for the trial court's decision and the issue the Supreme Court did not 

reach in Easterlin: whether a defendant who is not seeking to withdraw a plea in its 

entirety can challenge whether there was a sufficient basis for his plea to the deadly 

weapon enhancement. Mr. Hufferd-Ouellette's request that we reverse the trial court 

presents both of the bases for the trial court's decision for review.

                                               II

       The second basis for the trial court's decision to impose the firearm enhancement 

in resentencing Mr. Hufferd-Ouellette was the fact that he had not moved to withdraw the 

plea, an argument the court recognized was also raised in Easterlin. RP at 38.  

       We begin our review of this issue with State v. Turley, 149 Wn.2d 395, 400, 69 
P.3d 338 (2003), noted by the Supreme Court in touching on this issue in Easterlin;3

Turley holds that a plea agreement is a package deal, and generally a defendant is not 

entitled to change only one part of that bargain. In Turley, the defendant had pleaded 

guilty to two counts and sentenced to concurrent terms without community placement, 

only to have the State move to amend the judgment and sentence upon discovering that 

community placement was mandatory for one of the charges.  The trial court refused to 

allow the defendant to withdraw his entire plea; on appeal, it was the State that contended 

       3 159 Wn.2d at 208 n.1.

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No. 29512-5-III
State v. Hufferd-Ouellette

that a plea could be partially rescinded and that the trial court properly limited the 

defendant to withdrawing only the plea that the State recognized as a problem. The 

Supreme Court disagreed, holding that "a trial court must treat a plea agreement as 

indivisible when pleas to multiple counts or charges were made at the same time, 

described in one document, and accepted in a single proceeding."  Id.

       After Turley, the Supreme Court decided State v. Bisson, 156 Wn.2d 507, 518-20, 

130 P.3d 820 (2006), in which the Court of Appeals had allowed a defendant to partially 

withdraw his plea based on involuntariness; in Bisson, it was the defendant's 

misunderstanding of the consequences of his plea that rendered it involuntary for 

purposes of CrR 4.2(f).  Again the Supreme Court reversed, holding:

              In light of the bright-line rule stated in Turley, we hold that, if 
       Bisson initially elects the remedy of withdrawal of the plea agreement, the 
       remedy is restricted to the withdrawal of the plea in its entirety.  Under 
       Turley, Bisson's plea agreement can be regarded as "indivisible" -- "a 
       'package deal'" -- since the pleas to the eight counts and the five weapon 
       enhancements were made contemporaneously, set forth in the same 
       document, and accepted in one proceeding.

Id. at 519.  The court noted that a decision of Division One of the Court of Appeals in 

State v. Zumwalt, 79 Wn. App. 124, 901 P.2d 319 (1995) had allowed a defendant to 

enter a new plea based on the factual inadequacy to support a deadly weapon 

enhancement under CrR 4.2(d) while at the same time it let stand the plea to the 

underlying charge.  To the extent inconsistent with Turley, the court disapproved 

                                               18 

No. 29512-5-III
State v. Hufferd-Ouellette

Zumwalt.  Id. at 520 n.5.

       Mr. Hufferd-Ouellette's pleas to the four counts, with two firearm enhancements 

charged in the information and set forth in his statement on plea of guilty, were set forth 

in the same document and accepted in one proceeding.  As such, we regard the agreement 

as indivisible.  Since Mr. Hufferd-Ouellette was not seeking to withdraw his entire plea, 

the trial court's alternative basis for imposing the firearm enhancement on the possession 

count -- that he was no longer seeking to withdraw his plea agreement -- was a sufficient 

one.

       Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the 

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No. 29512-5-III
State v. Hufferd-Ouellette

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040.

                                                ___________________________________
                                                Siddoway, J.

WE CONCUR:

__________________________________
Sweeney, J.

__________________________________
Brown, J.

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