State of Washington v. Lance Ray Horntvedt (Majority and Concurrence)

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FILED DECEMBER 12, 2023 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 DIVISION THREE STATE OF WASHINGTON, Respondent, v. LANCE RAY HORNTVEDT, Appellant. ) ) ) ) ) ) ) ) ) No. 38928-6-III OPINION PUBLISHED IN PART PENNELL, J. — Lance Ray Horntvedt appeals his convictions for felony sex trafficking, arguing his guilty plea was procured through an improper appeal to racial bias. Mr. Horntvedt is an African American. 1 During plea negotiations, the prosecuting attorney advised Mr. Horntvedt that if he took his case to trial, his jury would “not necessarily be a jury of [his] peers.” Clerk’s Papers (CP) at 116. Gesturing to herself and Mr. Horntvedt’s attorney, both of whom are white, the prosecuting attorney stated, “it’ll be a jury of our peers, be a lot of white folks.” Id. The trial court observed that the prosecuting attorney’s comments were improper, but it nevertheless denied Mr. Horntvedt’s motion to withdraw his plea, finding the plea was knowing, voluntary, and intelligent. Mr. Horntvedt prefers the term “African American” to describe his race. Rep. of Proc. (Nov. 17, 2021) at 63. 1 No. 38928-6-III State v. Horntvedt We reverse. The prosecutor’s invocation of the possibility of racial bias in order to leverage a guilty plea violated Mr. Horntvedt’s right to due process. A plea cannot be deemed voluntary under such circumstances. Rather, Mr. Horntvedt must be afforded the opportunity to withdraw his plea and, if he withdraws it, to proceed to trial. FACTS Mr. Horntvedt faced multiple charges of sex trafficking, attempted sex trafficking, and promoting prostitution in Franklin County, Washington. The charges resulted from a multi-jurisdiction human trafficking investigation. The State intended to seek a 66-year sentence if the case went to trial but offered Mr. Horntvedt a plea agreement specifying a 25-year sentence recommendation. Plea negotiation meeting On March 26, 2021, a meeting occurred at the Franklin County Corrections Center to discuss terms of a plea offer. Attendees included Mr. Horntvedt, the deputy prosecutor, Mr. Horntvedt’s attorney, and two corrections deputies. With the exception of Mr. Horntvedt, every person in attendance was white. The meeting was recorded and later transcribed. During the meeting, the prosecutor reviewed the proposed plea agreement with Mr. Horntvedt, including the offer of a 25-year sentence to “wrap up” all of his cases. 2 No. 38928-6-III State v. Horntvedt CP at 109. The prosecutor stated: I’m not here to convince you of anything . . . . [T]his meeting is not to threaten you, intimidate you, scare you, [or] anything like that . . . . [J]ust to tell you kind of what you’re looking at, . . . what the potential could be if the case goes to trial. Id. at 111. As the group continued to discuss the potential for resolution, the subject of the assigned judge and jury composition came up. The prosecutor explained that because of conflicts, only five judges remained in the pool to be assigned to Mr. Horntvedt’s case. The prosecutor explained that of the five judges, “two of those judges are women, which might be difficult for you in a case like this where there are six women victims . . . but those are things for you to consider as well.” Id. at 116. The prosecutor then stated: [T]he jury is picked from [Department of Licensing] records as well as voting records. So the jury that you will get will not necessarily be a jury of your peers, but it’ll be a jury of our peers, be a lot of white folks. And I’m not saying that . . . to scare you. That’s reality. We have very few . . . jurors of color that show up or . . . respond to our jury summons. That’s just the way it is in Franklin County. . . . But I just want you to know that, and I’m telling you that straight away so you’re clear on that. Id. When the prosecutor said “your peers,” she gestured her hand toward Mr. Horntvedt; when she said “our peers,” she gestured toward herself and defense counsel. Rep. of Proc. (RP) (Nov. 17, 2021) at 27, 39. 3 No. 38928-6-III State v. Horntvedt Defense counsel added: [Mr. Horntvedt had] asked me to file a motion to [change] . . . venue. The problem I—you know, uh, and—and that’s something that your experience will tell you the likelihood of—of having anything moved further than Walla Walla or Yakima is almost nonexistent. .... And Walla Walla’s more Caucasian than—than the [T]ri[-C]ities. And Yakima, I have—honestly have no idea what the—I mean, when I was working there, I . . . worked with people of a number of different races, but I don’t know what the percentages are. CP at 116-17. As Mr. Horntvedt was leaving the meeting, he told one of the corrections officers, “‘[t]hat’s some racist shit right there.’” RP (Nov. 17, 2021) at 57. After the meeting, defense counsel told the prosecutor his client was upset by her comment about Franklin County juries. In response, the prosecutor wrote a letter to defense counsel. In the letter, the prosecutor reiterated the plea offer, then explained: You have shared that your client was upset at my comment about the makeup of Franklin County juries. Please understand that I shared that solely to make him aware of the fact that, on the whole, our jury panels are not racially diverse and are unfortunately not usually representative of our community in total. This comment was based on my experience of trying nearly sixty jury trials here throughout my career. Nothing was meant to imply that we would be unable to seat a fair jury in Franklin County as it is of course my ethical obligation (and yours) to endeavor to pick jurors who are fair and impartial and free of bias . . . I just did not want him to reject the offer and then be surprised with the composition of our typical jury pools. 4 No. 38928-6-III State v. Horntvedt CP at 101. Guilty plea Soon after, Mr. Horntvedt agreed to plead guilty in accordance with the State’s offer. At the April 27, 2021, hearing, the trial court explained the significance of a guilty plea and then asked Mr. Horntvedt if anyone threatened him to get him to plead guilty. Mr. Horntvedt replied, “No.” RP (Apr. 27, 2021) at 8. Defense counsel then interjected, “I will just make a brief record that [Mr. Horntvedt] was concerned about a statement that was made out of court, but we discussed that and that’s not really a threat. It was just a statement of fact, and we’ll leave it at that for now.” Id. The court did not inquire into the out-of-court statement. The court accepted Mr. Horntvedt’s guilty plea and found it was “knowingly, intelligently, and voluntarily made; not the product of fear, coercion, or ignorance.” Id. at 19; see also CP at 25. The court ordered the State to prepare a presentence investigation report and continued the case for sentencing. Motion to withdraw guilty plea At the start of the June 2, 2021, sentencing hearing, defense counsel informed the court that Mr. Horntvedt’s grandmother wished to play a 60-second excerpt from 5 No. 38928-6-III State v. Horntvedt the recorded remarks made by the prosecutor during the plea negotiation meeting. After the court questioned why it should grant the request, defense counsel explained: The issue is one that Mr. Horntvedt has struggled with the idea of whether to withdraw his plea based on whether or not he was intimidated into entering this plea. We have reached an agreement that he would move forward with this but that he would play this snippet for your Honor to determine whether or not he was coerced in any way into entering this plea. And yet he has agreed to move forward with this change of plea. So again part of the last-minute issues here we had drafted a motion to withdraw the plea, shared that with the state. Talked until late last night with Mr. Horntvedt. He decided he would prefer to go forward with this today, but he still wants the Court to be aware of the situation during the sentencing as to why, as to part of why he’s going forward with this. RP (June 2, 2021) at 6-7. The court responded, “So he wants the benefit of a motion to withdraw a guilty plea without the risk?” Id. at 7. Defense counsel replied: I don’t think that’s quite how I would phrase it. I think he wants to make sure that your Honor is aware of all of this. There is an agreed recommendation, which I am asking you to follow. The state will ask you to follow. It’s within the standard sentencing range. It is actually I think the low end of the standard sentencing range, which we will all discuss momentarily. Id. The court asked a few questions about the nature of the recording, then told defense counsel his client had a binary choice: “Your client either wants to adhere to the plea, or he wants to attempt to withdraw it.” Id. at 11. 6 No. 38928-6-III State v. Horntvedt Defense counsel conferred with Mr. Horntvedt, then informed the court that his client wanted to withdraw the plea. The court stated it would allow the motion to proceed, requested additional briefing on the issue of admissibility of the recording under ER 410, then recessed the hearing. Defense counsel later filed a written motion to withdraw the guilty plea on behalf of Mr. Horntvedt. In an accompanying declaration, defense counsel stated: When Mr. Horntvedt entered into the plea agreement, there was an indication that he entered into the plea agreement freely and voluntarily without coercion . . . . However, Mr. Horntvedt declared, a few days later, he no longer felt that he entered his plea agreement freely and voluntarily. CP at 31. The hearing resumed a few weeks later. The court decided ER 410 did not prevent it from listening to the recording of the plea negotiation meeting. It determined that both the prosecutor and defense counsel would be witnesses during an evidentiary hearing on the motion and requested successor conflict counsel be appointed for both sides. Withdrawal of guilty plea evidentiary hearing At the November 2021 evidentiary hearing, the court heard testimony from the prosecutor, defense counsel, Mr. Horntvedt, and the two corrections officers who were present at the plea negotiation meeting. 7 No. 38928-6-III State v. Horntvedt The prosecutor explained the nature of the plea negotiation meeting and the hand gesture she made. Counsel testified she wanted to explain to Mr. Horntvedt the consequences of a guilty plea, the complexity of his case, and the negotiated plea agreement. She then testified about the purpose of her remarks about jury composition: My purpose was kind of two fold [sic]. Mr. Horntvedt, I’ve prosecuted him a couple times before. He’s never had a case that has gone to a jury trial. So I wanted to kind of let him know a little of what to expect. Sometimes peoples’ expectations of what a jury pool will look like or will be is not the reality. .... Secondly, I’ve had cases before where a defendant comes into court and sees a jury pool, and it’s not what they expect, and then they want to change their mind at the last minute. So I was telegraphing to him that we get the jury pool that we get. RP (Nov. 17, 2021) at 35. During the prosecutor’s testimony, the court admitted into evidence the letter she wrote to defense counsel about her jury composition remarks. Defense counsel testified that following the plea negotiation meeting and receipt of the prosecutor’s letter, he and Mr. Horntvedt discussed the difference between how he perceived the prosecutor’s remarks, how she explained them in her letter, and whether to go forward with trial or a plea. Mr. Horntvedt testified the prosecutor told him if he went to trial, he would not be afforded a jury of his peers. He testified he was shocked by the bluntness of the prosecutor’s remarks and he felt he was being attacked. Mr. Horntvedt said he told his 8 No. 38928-6-III State v. Horntvedt counsel how the deputy prosecutor’s “racist” remarks made him feel and that he wanted the ability to present to the court what was said and how he felt. Id. at 51. The court concluded the hearing by stating it would listen to the plea negotiation recording, review the briefing and a transcript of the evidentiary hearing once that was available, and then determine if argument on the plea withdrawal motion was necessary. Subsequent proceedings After considering the record, the court held a hearing with the parties and denied the motion to withdraw the plea. The court found the prosecutor’s statements “improper.” CP at 125. Nevertheless, the court determined Mr. Horntvedt’s guilty plea was knowing, voluntary, and intelligent. The court then sentenced Mr. Horntvedt to serve 25 years of confinement and 36 months of community custody. Mr. Horntvedt has filed a timely appeal, challenging the trial court’s denial of his motion to withdraw the plea. ANALYSIS A trial court must permit a defendant to withdraw their plea in order to correct a “manifest injustice.” CrR 4.2(f). In this context, a manifest injustice refers to “‘an injustice that is obvious, directly observable, overt, not obscure.’” State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 9 No. 38928-6-III State v. Horntvedt 521 P.2d 699 (1974)). A defendant seeking to withdraw their plea based on a manifest injustice bears a significant, though not insurmountable, burden of proof. State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996). We review a trial court’s denial of a motion to withdraw a guilty plea for abuse of discretion. State v. A.N.J., 168 Wn.2d 91, 106, 225 P.3d 956 (2010). One type of manifest injustice that warrants withdrawal of a plea occurs when a plea is involuntary. Ross, 129 Wn.2d at 284. A plea may be involuntary due to circumstances such as misinformation, threats, or mental coercion. See State v. Weyrich, 163 Wn.2d 554, 557, 182 P.3d 965 (2008) (per curiam); State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003); State v. Frederick, 100 Wn.2d 550, 556-57, 674 P.2d 136 (1983), overruled on other grounds by Thompson v. Dep’t of Licensing, 138 Wn.2d 783, 794-95, 798, 982 P.2d 601 (1999). The constitutional right to due process protects against entry of an involuntary plea. Weyrich, 163 Wn.2d at 556. Mr. Horntvedt argues his plea was involuntary in violation of due process because it was predicated on race-based prosecutorial misconduct. Our case law has yet to address whether this type of prosecutorial misconduct can render a plea involuntary. We conclude that it can. And here, based on an objective review, we conclude the prosecutor’s 10 No. 38928-6-III State v. Horntvedt invocation of race to leverage a guilty plea rendered the plea involuntary as a matter of law. Reliance on racial or ethnic bias has no place in the justice system. See State v. Zamora, 199 Wn.2d 698, 723, 512 P.3d 512 (2022); see also Rose v. Mitchell, 443 U.S. 545, 555, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979) (“Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”); State v. Sum, 199 Wn.2d 627, 640, 511 P.3d 92 (2022). Appeals to bias not only cause personal harm and undermine the integrity of the judicial system, they distort the deliberative process. “[E]ven the simplest racial cues can trigger implicit biases . . . [that] affect . . . decision-making more so than even explicit references to race.” State v. Bagby, 200 Wn.2d 777, 795, 552 P.3d 982 (2023) (plurality opinion). Our case law has primarily addressed the impact of a prosecutor’s invocation of racial bias on the decision-making of jurors. See, e.g., id. But bias impacts everyone. See Jessica Salvatore & J. Nicole Shelton, Cognitive Costs of Exposure to Racial Prejudice, 18 PSYCH. SCI. 810, 810-11 (2007); Isabel Bilotta et al., How Subtle Bias Infects the Law, 15 ANN. REV. L. & SOC. SCI. 227, 228-29 (2019). Just as racial bias odiously infects a jury’s deliberations, it can have a deleterious impact on the decision-making of a defendant weighing the merits of a plea offer. The abrupt injection of racial bias into 11 No. 38928-6-III State v. Horntvedt one’s decision-making process can engender feelings of inferiority, distrust, helplessness, and self-doubt. See Brown v. Bd. of Educ., 347 U.S. 483, 494, 74 S. Ct. 686, 98 L. Ed. 873 (1954); Henderson v. Thompson, 200 Wn.2d 417, 432 n.6, 518 P.3d 1011 (2022) (observing that racial microaggressions can cause anger, frustration, and self-doubt). An individual who has been subjected to a lifetime of racial bias is vulnerable to having wounds reopened through posttrauma reactions, especially when confronted by the State’s agents. See Antoinette Kavanaugh et al., Taking the Next Step in Miranda Evaluations: Considering Racial Trauma and the Impact of Prior Police Contact, 47 L. & HUM. BEHAV. 249, 253 (2023); see also Sydney Baker et al., A Critical Discussion of Youth Miranda Waivers, Racial Inequity, and Proposed Policy Reforms, 29 PSYCH., PUB. POL’Y, & L. 320, 326 (2023) (describing how awareness of racial stereotypes impairs one’s ability to control emotional and cognitive processes and “resist pressure” from governmental actors). Invocations of racial bias may also cloud an individual’s decisionmaking by triggering painful memories of historic injustices and systemic inequality under the law. See United States v. Knights, 989 F.3d 1281, 1297-98 (11th Cir. 2021) (Rosenbaum, J., concurring); Joseph J. Avery & Joel Cooper, Racial Bias in Post-Arrest and Pretrial Decision Making: The Problem and a Solution, 29 CORNELL J. L. & PUB. POL’Y 257, 272-73 (2019). Thus, in the context of a plea offer, the taint of racial bias 12 No. 38928-6-III State v. Horntvedt inherently subverts a defendant’s ability to rationally weigh the options and make a “calculated” move as to whether to take a plea. Cf. State v. Cameron, 30 Wn. App. 229, 231, 633 P.2d 901 (1981). The distortive power of racial bias applies to all human decision-making processes. Regardless of whether such bias has been injected into a jury’s decision-making or a defendant’s participation in plea bargaining, “a verdict affected by racism violates fundamental concepts of fairness and equal justice under law.” Henderson, 200 Wn.2d at 421. In order to eradicate the pernicious impact of racism on our justice system, claims of race-based prosecutorial misconduct must be subjected to a heightened standard of review “to ensure there is no constitutional violation.” Bagby, 200 Wn.2d at 788. The test adopted by our Supreme Court for assessing whether a judgment was impermissibly affected by racism is the objective observer standard. This test demands that we resist the urge to speculate about the precise impact of a purportedly racist comment and instead ask whether “an objective observer could view the prosecutor’s . . . comments . . . as an appeal to . . . prejudice, bias, or stereotypes” about a racial or ethnic group. Zamora, 199 Wn.2d at 718 (emphasis added). “The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful 13 No. 38928-6-III State v. Horntvedt discrimination” that has resulted in injustices against people of color in the criminal justice system. Id. An objective observer could readily interpret the prosecutor’s comments during Mr. Horntvedt’s plea negotiation meeting as an apparently intentional appeal to the impact of racial bias. The prosecutor explicitly told Mr. Horntvedt that, should he take his case to trial, he would be unlikely to receive a jury of his “peers.” CP at 116. The prosecutor also emphasized that Mr. Horntvedt was different from herself and defense counsel because they, like the anticipated jurors, were “white folk[].” Id. Our Supreme Court has recognized that this type of us-versus-them language carries an implication that racial minorities will not be treated equally under the law. See Bagby, 200 Wn.2d at 794. An objective observer could construe the prosecutor’s comments as leveraging the possibility of racial bias in order to secure Mr. Horntvedt’s guilty plea. The prosecutor’s statement was not merely an innocuous comment on the realities of Franklin County’s jury pools. An objective observer could fairly understand the comments to mean that Mr. Horntvedt’s chances for a fair trial in Franklin County would turn on his race, as opposed to the strength of the evidence. Because Mr. Horntvedt is African American, the message was clear that he would be less likely to receive a fair trial than a white 14 No. 38928-6-III State v. Horntvedt defendant. 2 This message of unfairness based on personal identity was underscored when the prosecutor warned Mr. Horntvedt that his case might also be made “difficult” by the possible involvement of a female judge. CP at 116. The fact that the prosecutor’s comments were an apparently intentional appeal to racial bias does not mean that the prosecutor was actually motivated by animus. Although misguided, the prosecutor’s comments may have been well intentioned. Undoubtedly the prosecutor believed the plea offer was in Mr. Horntvedt’s best interests. And she appeared motivated to go out of her way to make sure Mr. Horntvedt understood the risks involved in taking his case to trial. But the prosecutor’s apparently benign intentions are irrelevant to the objective observer standard. See Bagby, 200 Wn.2d at 791 (“[S]ubjective intent is not considered in race-based prosecutorial misconduct claims.”). The objective observer analysis is “concerned with the impact of racial bias—not a person’s intent.” The appearance of the conversation to an objective observer would likely be different had it occurred solely between Mr. Horntvedt and his own attorney. “[I]t is not considered misleading or coercive for an attorney to honestly discuss with [their] client the potential obstacles that may arise at trial (including the demographics of the jury pool) and how those issues may affect the outcome or potential sentence.” Polk v. State, 605 S.W.3d 427, 432 (Mo. Ct. App. 2020). But the prosecutor plays a different role. The prosecutor is a representative of the State. By suggesting, on behalf of the State, that a defendant might not receive a fair trial due to the defendant’s race, the State strips a defendant of any faith in the justice system. 2 15 No. 38928-6-III State v. Horntvedt Id. at 792-93. Our objective review of the record shows the prosecutor appealed to fears of racial bias in order to leverage Mr. Horntvedt’s guilty plea. This is an “inherently prejudic[ial]” circumstance that can be remedied only by reversal. Zamora, 199 Wn.2d at 721. It would be inappropriate to speculate on the extent to which the specter of racism actually impacted Mr. Horntvedt’s thought processes or whether subsequent communications from the prosecutor or defense counsel might have alleviated Mr. Horntvedt’s concerns. The impact on human behavior of an appeal to racial bias is too difficult to measure. See Bagby, 200 Wn.2d at 802-03. When a defendant’s plea is sustained in violation of due process, our courts “decline to engage in a subjective inquiry into the defendant’s risk calculation and the reasons underlying [their] decision to accept the plea bargain.” State v. Mendoza, 157 Wn.2d 582, 590-91, 141 P.3d 49 (2006). 3 Instead, given the nature of the Mendoza and its progeny were not decided in the context of racial misconduct, nevertheless like Zamora and Bagby these cases reject a harmless error approach. As outlined in Mendoza, when a defendant is provided misinformation about the direct consequences of a guilty plea, the defendant will be entitled to withdraw the plea without having to show the misinformation impacted their subjective decision to enter a plea. 157 Wn.2d at 590-91. Mendoza’s rule against harmless error applies in equal force when the misinformation constitutes the distorting impact of racial bias. 3 16 No. 38928-6-III State v. Horntvedt harm, the defendant must be allowed the option to withdraw the plea. See Weyrich, 163 Wn.2d at 557. 4 CONCLUSION All members of the legal community—law enforcement, attorneys, and judges— bear responsibility for addressing racial inequities in our justice system. This is hard work. None of us has all the answers and all of us will sometimes get things wrong. Yet we must move forward with humility, compassion, and dedication to constant improvement. Mr. Horntvedt has established a manifest injustice impaired the voluntariness of his guilty plea. He therefore must be given the option to withdraw. We remand for the trial court to allow Mr. Horntvedt to withdraw his plea and, if he withdraws it, to set this matter for trial. Our concurring colleague takes a different methodological approach, insisting that a court can find a plea was subjectively voluntary, despite the prosecutor’s use of a manifestly unjust appeal to racial bias. We disagree that this type of subjective inquiry is either possible or appropriate. It is akin to the harmless error approach that the Supreme Court abandoned in Zamora. 199 Wn.2d at 721 (“[W]hen a prosecutor flagrantly or apparently intentionally appeals to . . . racial or ethnic prejudice, bias, or stereotypes, the resulting prejudice is incurable and requires reversal.”). Rather than take a subjective approach, or speculate as to Mr. Horntvedt’s internal thought processes, we conclude Mr. Horntvedt’s plea was rendered involuntary as a matter of law. 4 17 No. 38928-6-III State v. Horntvedt A majority of the panel having determined that only the foregoing portion of this opinion, and the concurring opinion in its entirety, will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW RAP 10.10 permits a defendant to file a pro se statement of additional grounds for review (SAG) if the defendant believes their appellate counsel has not adequately addressed certain matters in the briefing. Mr. Horntvedt raises two issues in his SAG, which we discuss in turn. CrR 3.3 time-for-trial violations Mr. Horntvedt contends the trial court violated CrR 3.3. We review alleged violations of CrR 3.3 de novo. State v. Walker, 199 Wn.2d 796, 800, 513 P.3d 111 (2022). To preserve a claim for a CrR 3.3 violation, the defendant must timely object to the setting of a trial that is outside of the time-for-trial period and move to reset trial within the time-for-trial period. CrR 3.3(d)(3). Mr. Horntvedt contends he objected to all continuances. However, the record before us does not show when Mr. Horntvedt was arraigned nor does it show any timefor-trial objections. The record is therefore insufficient for us to determine whether a 18 No. 38928-6-III State v. Horntvedt violation occurred or not. Issues that involve facts or evidence not in the record on review are more properly raised through a personal restraint petition, not a SAG. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Because Mr. Horntvedt fails to identify the specific occurrence of any objection or error, review here is not warranted. RAP 10.10(c). Plea negotiation meeting attendees In his second SAG issue, Mr. Horntvedt identifies the persons present during the plea negotiation meeting and their race. However, he fails to identify any error for this court to review. RAP 10.10(c). Both parties’ briefing and the trial court’s findings correctly account for the persons present during the meeting and their race. Since Mr. Horntvedt fails to identify the occurrence of any error, review here is not warranted. Id. We remand for the trial court to allow Mr. Horntvedt to withdraw his plea and, if he withdraws it, to set this matter for trial. Pennell, J. I CONCUR: Staab, J. 19

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