In re Cross

• Decision Date: 26 September 2013
• Docket Number: No. 79761–7.,79761–7.
• Citation: 309 P.3d 1186,178 Wash.2d 519
• Parties: In the Matter of the Personal Restraint of Dayva CROSS, Petitioner.
• Court: Washington Supreme Court

178 Wash.2d 519
309 P.3d 1186

In the Matter of the Personal Restraint of Dayva CROSS, Petitioner.

No. 79761–7.

Supreme Court of Washington,
En Banc.

Sept. 26, 2013.

[309 P.3d 1187]

James Elliot Lobsenz, Carney Badley Spellman, Todd Maybrown, Allen Hansen & Maybrown PS, Seattle, WA, for Petitioner.

Donald James Raz, Attorney at Law, Randi J. Austell, Attorney at Law, James Morrissey Whisman, Daniel Todd Satterberg, Seattle, WA, for Respondent.

David B. Zuckerman, Attorney at Law, Rita Joan Griffith, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Assoc. of Criminal Defense Lawyers.

John Scott Blonien, Department of Enterprise Services–Off of, Paul Douglas Weisser, Attorney General's Office, Olympia, WA, for Other Parties.

CHAMBERS, J.^*

[178 Wash.2d 521] ¶ 1 Dayva Cross pleaded guilty to killing his wife and two of her three daughters in 2001 and was sentenced to death. State v. Cross, 156 Wash.2d 580, 592, 132 P.3d 80 (2006). We affirmed his sentence on direct review. Id. When Cross entered his plea he did so by what we commonly call an Alford¹ plea. In an Alford plea, the accused technically does not acknowledge guilt but concedes there is sufficient evidence to support a conviction. A judge may accept such a plea only if it is made voluntarily, competently, with an understanding of the nature of the charge and the consequences of the plea, and when the judge is satisfied that there is a factual basis for the plea. [178 Wash.2d 522]State v. A.N.J., 168 Wash.2d 91, 117, 225 P.3d 956 (2010) (citing In re Pers. Restraint of Mendoza Montoya, 109 Wash.2d 270, 277, 744 P.2d 340 (1987)); CrR 4.2(d). In his first personal restraint petition challenging the judgment and sentence, Cross contended, among other things, that an Alford plea is insufficient to support capital punishment and asked that we vacate his sentence and remand to the trial court with direction that the Alford plea be set aside, essentially rolling this case back to where it was in 2000. If Cross had prevailed on this issue, much of his personal restraint petition would have been mooted, so this court agreed to consider the issue separately. After oral argument we denied relief by order with opinion to follow. This is that opinion. We hold that a capital sentence can be predicated on an Alford plea and deny that portion of his personal restraint petition. The remaining issues will be disposed of by separate opinion.

Analysis

¶ 2 The character of the claimed error as constitutional or nonconstitutional would normally both structure our review and establish the petitioner's burden. At minimum, Cross must establish error and actual and substantial prejudice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 810–12, 792 P.2d 506 (1990). The parties have elected not to discuss this character of the error and instead focus on the claimed error itself. Applying the minimum burden Cross must meet, we find no error and thus need not decide its character.

[309 P.3d 1188]

1. Common Law No–Contest Pleas

¶ 3 Essentially, Cross proposes a syllogism. At common law, a defendant could not plead no-contest to a capital charge. An Alford plea, he argues, is essentially a no-contest [178 Wash.2d 523]plea. Therefore, he concludes, Judge Joan DuBuque should not have accepted it.²

¶ 4 Cross's first premise is correct. By the mid-fourteenth century, English courts were accepting various types of no-contest pleas in misdemeanor cases. Neil H. Cogan, Entering Judgment on a Plea of Nolo Contendere: A Reexamination of North Carolina v. Alford and Some Thoughts on the Relationship Between Proof and Punishment, 17 Ariz. L.Rev. 992, 1003, 1007 (1975). For example, by 1431, defendants could enter a plea of “ ‘ponit se in gratiam domini Regis'—he puts himself in the grace of the lord King,” without specifically admitting guilt. Id. at 1005. But if charged with a felony, the defendant had the choice of confession, what we now call a guilty plea, or denial, what we now call a not guilty plea. Id. at 999, 1002. If the defendant denied the charge, he had to consent to some sort of trial. Id. If the defendant declined to plea, he could be tortured or imprisoned until he did. Id. at 1002–03 & n. 86. There was apparently no mechanism for a trial judge to enter a plea on the defendant's behalf.

¶ 5 “Because the plea of ponit se in gratiam presented proof of guilt with reduced certainty, the punishment meted out to the accused appears to have been correspondingly reduced.” Id. at 1011 (citing William Lambard, Eirenarcha 512 (1599)). Ponit se in gratiam could not be pleaded to felonies (which at the time almost always carried a potential death sentence) because “an implied admission was proof of insufficient certainty upon which to put a person to death.” Cogan, supra, at 1013; see also Nathan B. Lenvin & Ernest S. Meyers, Nolo Contendere: Its Nature and Implications, 51 Yale L.J. 1255, 1262–63 (1942).

¶ 6 Defendants were pleading nolo contendere in England by 1716 and New York by 1721. Cogan, [178 Wash.2d 524]supra, at 1014, 1015 (citing Thomas Farresley, Modern Cases (1716); Julius Goebel, Jr. & T. Raymond Naughton, Law Enforcement in Colonial New York 592–93 & n. 180 (1944)). Over the years, nolo contendere and non vult contendere pleas were allowed for noncapital felonies, but less than a century ago the Pennsylvania Supreme Court observed, “[N]either in England nor in this country has the plea ever been allowable in capital cases.” Commonwealth v. Shrope, 264 Pa. 246, 250, 107 A. 729 (1919); see also Cogan, supra, at 999. Instead, in capital cases, “guilt must be established by evidence which excludes all reasonable doubt. An implied confession of guilt cannot rise to the degree of certainty which would make it the equivalent of an express confession.” Shrope, 264 Pa. at 250, 107 A. 729;see also Hudson v. United States, 272 U.S. 451, 451–52, 47 S.Ct. 127, 71 L.Ed. 347 (1926); ³State ex rel. Clark v. Adams, 144 W.Va. 771, 779, 111 S.E.2d 336 (1959) (“The courts, however, are unanimous in holding that in the absence of a statute to the contrary the plea of nolo contendere can not be accepted to an indictment for an offense for which capital punishment is prescribed.”). Despite the history of refusing to accept the plea in felonies, in 1926, the United States Supreme Court approved the use of a nolo contendere plea in crimes that carried a prison sentence. Hudson, 272 U.S. at 452, 457, 47 S.Ct. 127.

[309 P.3d 1189]

¶ 7 There is nothing mystical about common law courts' reluctance to accept these various types of no-contest pleas in capital cases. While a confession was accepted as sufficient evidence of guilt at common law, once various types of [178 Wash.2d 525]duels and ordeals were set aside, there was no other way to test whether there was sufficient evidence of guilt except by trial. Cogan, supra, at 1000, 1003. Trial, it seems, could be held only if the defendant consented. Id. at 999 & nn. 68–69. If the defendant did not consent to some method of proof, the judge could be put in the position of sentencing a man to death with only the accusation as evidence of guilt. As Professor Cogan noted:

[A]n accused's refusal to confess or deny/consent, even if characterized as an implied admission, provided no such sufficient proof, evil fame of the accused notwithstanding. An accused might have refused to confess or deny/consent for many reasons, including among others, avoidance of forfeiture of lands and tenements, and distrust of the mode of proof. Thus, while it might have been reasonable to imply guilt from an accused's refusal to expressly admit or deny, such an implied admission appears not to have been clothed with enough certainty to constitute sufficient proof for a felony. Misdemeanors, on the other hand, were treated somewhat differently.

Cogan, supra, at 1003 (footnote omitted).

2. Alford Pleas

¶ 8 However, the next leg of Cross's syllogism, that the Alford plea ⁴ is essentially the same as the common law no-contest plea, fails. Unlike the common law no-contest pleas that could be entered without any factual support or independent determination of the existence of sufficient evidence to support a finding of guilt, an Alford plea in Washington State courts can be accepted only if the trial [178 Wash.2d 526]judge finds that it is knowingly, voluntarily, and intelligently made, and that there is a satisfactory evidentiary basis to accept the plea:

The 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.
CrR 4.2(d). That evidence can come from any reliable source and must be sufficient for a jury to conclude the defendant is guilty. State v. Newton, 87 Wash.2d 363, 369–70, 552 P.2d 682 (1976).

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