Hews, Matter of

• Decision Date: 06 August 1987
• Docket Number: No. 52423-8,52423-8
• Citation: 741 P.2d 983,108 Wn.2d 579
• Parties: In the Matter of the Personal Restraint Petition of Iain Christopher HEWS, Petitioner. *
• Court: Washington Supreme Court

Page 579

108 Wn.2d 579

741 P.2d 983

In the Matter of the Personal Restraint Petition of Iain Christopher HEWS, Petitioner. ^*

No. 52423-8.

Supreme Court of Washington En Banc.

Aug. 6, 1987.

Browne & Ressler, John Henry Browne, Seattle, for petitioner.

Norm Maleng, King County Pros., Deborah J. Phillips, Sr. Appellate Atty., Seattle, for respondent.

GOODLOE, Justice.

Iain Christopher Hews filed a personal restraint petition challenging the validity of his guilty plea. In an earlier decision, this court found that Hews had made a prima facie showing of constitutional error in the taking of his plea and remanded for a hearing on the circumstances surrounding the plea taking. In re Hews, 99 Wash.2d 80, 660 P.2d 263 (1983). On remand, the trial court found Hews to be presently incompetent, yet proceeded anyway with a hearing on the merits and denied the personal restraint petition. Hews appealed, and this court granted direct review. We affirm the trial court as modified herein.

This case is of longstanding origin. On October 18, 1969, 16-year-old Hews robbed John Vavricka outside of Jilly's Tavern in Montlake and shot him in the stomach. Vavricka later died from his wound. Following a decline hearing, Hews was charged in Superior Court with first degree felony murder. Plea negotiations ensued. On March 13, 1970 Hews pleaded guilty to second degree murder. The amended information alleged that Hews "willfully, unlawfully and feloniously shot at" the victim "with a design to effect [his] death". Report of Proceedings, at 20.

At the plea hearing, the court asked Hews if he was aware that he was accused of intending to kill someone. Hews did not specifically answer whether he understood the accusation and denied that he intended to kill. Hews then described the robbery and killing for the trial court. Hews' attorney orally assured the court that his client understood both the original charge and amended charge against him. The court concluded:

From the statement [Hews] has made and from the testimony that I have heard from the doctor I am satisfied that he knows what he is charged with and that he knows what took place and that what took place did in fact amount to Murder in the Second Degree, so that if he chose to plead guilty to it it is because he is guilty of it as a matter of fact and this is what I must insist upon in order to do my job.

Hews, at 83, 660 P.2d 263 (entire exchange contained in Hews, at 82-84, 660 P.2d 263).

Following this colloquy, the court allowed the filing of the amended information. Hew's attorney acknowledged receipt of a certified copy of the amended information and waived its reading, upon satisfaction "that the Defendant understands the substance of the charge". Hews, at 84, 660 P.2d 263. Upon being informed of the rights he would be waiving by entering a plea of guilty, Hews pleaded guilty to the charge of murder in the second degree. Hews, at 84, 660 P.2d 263.

In October 1981, Hews, represented by new counsel, filed a personal restraint petition challenging his guilty plea. This court reviewed the petition and held that Hews had "submitted a prima facie case demonstrating that his plea was constitutionally invalid." Hews, at 88, 660 P.2d 263. Because the record was inadequate to make a final determination of this issue, the court remanded the case to Superior Court for a hearing on the merits. To prevail at this hearing, we held Hews would have to show "actual prejudice" in that he did not understand the requisite elements of the crime or that his conduct satisfied those elements. Hews, at 88, 660 P.2d 263.

Around this time, Hews' new attorney apparently began to have grave doubts as to his client's competency. On the basis of expert reports, the prosecutor agreed that Hews was unable to assist counsel in the personal restraint proceeding. ¹ Hews' attorney therefore moved that the proceedings be stayed on the ground of Hews' incompetency and that Hews be civilly committed, as it was unlikely that he would become competent within the foreseeable future. The State objected to this suggestion and moved instead to dismiss and to appoint a guardian. The State argued that RCW 10.77, on which petitioner's counsel based the motion for a stay, was inapplicable to civil proceedings such as collateral attacks upon convictions. The trial court issued a finding of fact and conclusion of law that Hews was incompetent to assist counsel and would not become competent within the near future. Nevertheless, the court appointed Hews' mother to act as his guardian in this proceeding and went on to decide this case on the merits.

The trial court held an evidentiary hearing, over Hews' objections at which Hews' former attorney described the plea negotiations in which he had engaged for Hews. Counsel said it was obvious to him from the outset that the State had an open and shut case of first degree felony murder. Counsel testified that he was extremely pleased with the State's offer to accept a plea of second degree murder and thought it important for Hews to agree to the plea quickly before his mental condition deteriorated or the prosecutor withdrew the offer. Counsel could recall no specific discussion with Hews regarding the intent requirement of second degree murder. However, he testified that they went over both the original information and the amended information before Hews pleaded guilty. Moreover, counsel noted in his file that they had discussed the available alternatives 3 days before the plea entry and that Hews understood it would be in his best interest to plead to the amended second degree murder charge.

In April 1985, the trial court entered findings of fact reflecting the attorney's testimony. The court found that petitioner had failed to prove by a preponderance of the evidence that he was actually prejudiced by his entry of the guilty plea. However, the court continued the matter pending further psychiatric evaluation on the likelihood of future competency, noting that "because of [Hews'] incompetence he has been unable to present all of the evidence which might be available to him." Report of Proceedings, at 219. Following such evaluations, the court denied the personal restraint petition. Hews now appeals directly to this court.

This case presents two issues:

(1) May a personal restraint petition challenging the validity of a guilty plea be decided on the merits if the petitioner is incompetent?

(2) If so, has Hews met his burden of showing actual prejudice in the taking of his plea?

We answer the first question in the affirmative and the second in the negative. We moderate our holding with the observation that if Hews should become competent in the future, and if his competency results in new evidence concerning the validity of his guilty plea, he will be eligible to bring a new personal restraint petition. RAP 16.4(d).

I

On appeal, neither party challenges the finding of incompetency; at issue is what action the court should take if a personal restraint petitioner is not able to comprehend the proceedings or assist his attorney. Hews contends that the case should have been stayed until such time as he regains competence. In the interim, Hews argues he should be removed from prison and committed in a civil institution. The State, in turn, contends that post-convictionproceedings may continue despite the prisoner's incompetency. The State argues that the due process considerations which preclude subjecting an incompetent defendant to a criminal trial do not apply in post-conviction proceedings.

The only times this court has addressed the question of whether competency is required for post-conviction proceedings have been in the context of parole and probation revocation proceedings. In State v. Campbell, 95 Wash.2d 954, 632 P.2d 517 (1981), we held that a probation period was tolled while the probationer was incompetent and committed in a mental institution, on the ground that while committed the probationer was beyond court supervision:

During the period defendant was committed to the mental hospital for determination of incompetency, he was beyond the supervision of the court since one has a fundamental right not to be tried, convicted or sentenced while incompetent.

Campbell, at 957, 632 P.2d 517 (citing RCW 10.77.050). This reasoning would seem to imply that there can be no probation revocation proceeding while a probationer is incompetent. Accord Sailer v. Gunn, 548 F.2d 271, 274 (9th Cir.1977). However, we subsequently held in Pierce v. Department of Social & Health Servs., 97 Wash.2d 552, 560, 646 P.2d 1382 (1982), that due process does not require a convict to be competent at parole revocation proceedings. This holding was based in part on the court's conclusion that incompetency is itself a condition which the Board of Prison Terms and Paroles must consider in determining whether a parolee should be integrated into society. Pierce, at 556-57, 646 P.2d 1382. The court also noted that because a parolee's incompetence would threaten his successful rehabilitation and could increase the likelihood of further antisocial acts, "the State's interest in proceeding against an incompetent parolee is very strong." Pierce, at 559, 646 P.2d 1382.

The discrepancy between Pierce and Campbell suggests that this court has not resolved the question of competency requirements in post-conviction proceedings. We need not resolve the discrepancy at this time, however, because we find that the parole and probation revocation proceedings in Pierce and Campbell are fundamentally different from the personal restraint proceeding at hand. We believe there is greater reason to proceed despite incompetency in the context of a personal restraint petition.

The rule that an incompetent cannot be subject to a criminal trial stems from due process and fairness considerations. See Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975). Whereas these...