Keene, Matter of

• Decision Date: 31 December 1980
• Docket Number: No. 46197,46197
• Citation: 95 Wn.2d 203,622 P.2d 360
• Parties: In the Matter of the Personal Restraint Petition of Franklin KEENE, Petitioner.
• Court: Washington Supreme Court

Page 203

95 Wn.2d 203

622 P.2d 360

In the Matter of the Personal Restraint Petition of Franklin KEENE, Petitioner.

No. 46197.

Supreme Court of Washington, En Banc.

Dec. 31, 1980.

Institutional Legal Services, Wayne Lieb, Seattle, for petitioner.

Joseph Panattoni, Kittitas County Prosecutor, David H. Gorrie, Deputy Pros. Atty., Ellensburg, for respondent.

ROSELLINI, Justice.

This personal restraint petition is based upon a contention that the petitioner's plea of guilty was invalid because he did not understand the nature of the crime of forgery and the consequences of the plea.

Keene, a high school dropout, pleaded guilty to three counts of forgery. He had signed a typewritten statement prepared by his attorney and required by CrR 4.2(g).

In that statement the petitioner acknowledged that: the court had told him he was charged with three counts of forgery, the maximum sentence for each count being 5 years' imprisonment, or a $5,000 fine, or both; the court had advised him of his rights to counsel, to trial by jury, to hear and question adverse witnesses and to have witnesses testify for him, and that the charge must be proven beyond a reasonable doubt; he was pleading guilty to all three counts of forgery as charged in the information, a copy of which he received; he made this plea freely and voluntarily.

Shortly after signing the form, Keene responded affirmatively when his attorney asked if he had read the entire statement and signed it. Upon being questioned by the court, he declared that his reason for pleading guilty was that it would be "practically impossible" for him to "prove otherwise".

In his personal restraint petition, he states that he moved to withdraw the guilty plea before sentencing. He did not appeal from the denial of that motion.

CrR 4.2(d) reads:

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.

The petitioner argues that CrR 4.2(d) was violated. This claimed error is subject to the rule that a conviction may not be collaterally attacked upon a nonconstitutional ground which could have been raised on appeal, but was not. State v. Wicke, 91 Wash.2d 638, 645-46, 591 P.2d 452 (1979); In re Myers, 91 Wash.2d 120, 122, 587 P.2d 532 (1978), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979). A guilty plea does not preclude an appeal as to the circumstances under which the plea was made. Young v. Konz, 91 Wash.2d 532, 536, 588 P.2d 1360 (1979); State v. Saylors, 70 Wash.2d 7, 9, 422 P.2d 477 (1966); State v. Rose, 42 Wash.2d 509, 514, 256 P.2d 493 (1953). Therefore, this contention is precluded, no appeal having been taken. See State v. Saylors, supra; State v. Rose, supra.

Upon a personal restraint petition, however, the court will consider a contention that the petitioning prisoner is presently detained in violation of the federal or state constitution. RAP 16.4(c)(2), 16.7(a)(2); In re Myers, supra.

The United States Supreme Court has said that one purpose of Fed.R.Crim.P. 11, upon which our CrR 4.2 is based, is to fulfill the constitutional requirement that a plea of guilty be made voluntarily. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). We adopted the reasoning of that case in Wood v. Morris, 87 Wash.2d 501, 554 P.2d 1032 (1976), concluding that under CrR 4.2(d) the trial judge must make direct inquiries of the defendant to determine if he understands the nature of the charge and the full consequences of a guilty plea. The McCarthy court, however, had noted that the drafters of rule 11 had amended that rule in 1966 to expressly require the court to personally question the defendant. ¹ McCarthy at 394 U.S. at 465-66, 89 S.Ct. at 1170. CrR 4.2(d) does not include this requirement nor did the Wood court conclude that oral inquiries are necessary.

Subsequently, we interpreted Wood as ordering

that in superior court a trial judge must make direct inquiry either personally or by a written statement as to whether the defendant understands the nature of the charge and the full consequences of his plea. This was held to be a requirement of our court rule, CrR 4.2, and not a constitutionally mandated procedure.

(Italics ours.) In re Vensel, 88 Wash.2d 552, 554, 564 P.2d 326 (1977).

In the instant case, the judge was justified in relying upon the plea statement. While the statement was typewritten and was prepared by the petitioner's attorney, he told the trial court that he had read it, and that the statements contained in it were true. He will not now be heard to deny these facts.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that the defendant must be apprised of the nature of the offense and the consequences of pleading guilty in order for the plea a waiver of several constitutional rights to be accepted as knowing, intelligent and voluntary. Accord, State v. Holsworth, 93 Wash.2d 148, 153, 607 P.2d 845 (1980). Boykin, however, does not impose a due process requirement that the trial judge orally question the defendant to determine that he or she understands the nature of the offense and the consequences of pleading guilty in order for the plea to be accepted. The case requires only that courts canvass the matter with the accused to make sure that he or she fully understands what the plea connotes and its consequences. Boykin, 395 U.S. at 244, 89 S.Ct. at 1712.

The statement shows that the petitioner was aware of the consequences of his plea of guilty. Does it also show that he was aware of the nature of the charges against him?

A guilty plea cannot be voluntary in the sense that it constitutes an intelligent admission unless the defendant is apprised of the nature of the charge, " 'the first and most universally recognized requirement of due process.' " Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976), quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). See Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure (1971), Comment at 60.

Apprising the defendant of the nature of the offense need not "always require a description of every element of the offense ..." Henderson v. Morgan, 426 U.S. 637, 647 n.18, 96 S.Ct. 2253, 2258 n.18, 49 L.Ed.2d 108 (1976). At a minimum, however, it would appear that the defendant would need to be aware of the acts and the requisite state of mind in which they must be performed to constitute a crime.

State v. Holsworth, supra at 153 n.3, 607 P.2d 845.

The petitioner argues that he signed the plea statement without an understanding of the nature of the charge, particularly the requisite specific intent (intent to injure or defraud). RCW 9A.60.020(1). He relies heavily upon McCarthy v. United States, supra, which held that rule 11 required the trial court to personally inquire whether a defendant understood the essential elements of a charge of tax evasion, including "wilful and knowing" intent. McCarthy, however, is grounded on the requirements of rule 11 not upon constitutional principles. McCarthy, 394 U.S. at 464, 89 S.Ct. at 1169.

Henderson v. Morgan, supra, is also relied upon in support of the contention that a constitutional violation occurred. In Morgan, a habeas corpus petition alleged that a guilty plea was involuntary. The United States Supreme Court sustained the lower court holdings that the plea was involuntary because the petitioner was not informed that intent to cause the victim's death is an element of second degree murder.

The court stressed that the second degree murder charge was never formally made, for had it been it necessarily would have included an allegation that respondent's assault was "committed with a design to effect the death of the person killed." Henderson, 426 U.S. at 645, 96 S.Ct. at 2257. It also emphasized there was nothing in the record that could substitute for either a finding at trial or a voluntary admission that the respondent had the requisite intent. In a footnote, the court stated that notice of the true nature of a charge does not always necessitate a description of every element of the offense but that "intent is such a critical element of the offense of second-degree murder that notice of that element is required." Henderson at 647 n.18, 96 S.Ct. at 2258 n.18.

Intent to injure or defraud is likewise a "critical element" of the crime of forgery. Unlike Henderson, however, Keene had notice of that element. The information charged him with forgery, specifying that the acts were committed with the "intent to injure and defraud." He pleaded guilty to the crime of forgery "as charged in the information" and acknowledged receiving a copy of that information.

The petitioner assured the trial judge he had thoroughly read the plea statement and that it was true and correct. Because he was aware of the requisite specific intent, the constitution has not been violated. State v. Holsworth, supra at 153 n.3, 607 P.2d 845.

It is urged that the trial judge did not ascertain the factual basis of the guilty plea as required by CrR 4.2(d). In McCarthy v. United States, supra, the Supreme Court did not reach the question whether the then-identically worded rule 11 requirement that the judge satisfy himself of the plea's factual basis was met by a post-plea reading of the presentence report. Nonetheless, the court stressed that a guilty plea cannot be truly voluntary "unless the defendant possesses an understanding of the law in relation to the facts." McCarthy, 394 U.S. at 466, 89 S.Ct. at 1170.

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