Petition of Lee
| Decision Date | 31 December 1980 |
| Docket Number | No. 46886-9,46886-9 |
| Citation | 623 P.2d 687,95 Wn.2d 357 |
| Parties | In re the Personal Restraint Petition of Press LEE, Jr., Petitioner. In re the Personal Restraint Petition of Don D. HEMPHILL, Petitioner. In re the Personal Restraint Petition of Benjamin MALONE, Petitioner. In re the Personal Restraint Petition of Phillip Edward GREENE, Petitioner. In re the Personal Restraint Petition of Eugene S. THOMPSON, Petitioner. |
| Court | Washington Supreme Court |
Seattle-King County Public Defender Ass'n, John G. Ziegler, Seattle, Institutional Legal Services, John B. Midgley, Seattle, for petitioners.
Norman K. Maleng, Pros. Atty., Marc A. Bowman, Carol Walters, Deputy Pros. Attys., Seattle, C. J. Rabideau, Franklin County Prosecutor, Pamela Cameron, Deputy Pros. Atty., Pasco, for appellee.
John Panesko, Pros. Atty., Chehalis, for respondent.
In these petitions consolidated for review five persons, each of whom has had numerous contacts with the criminal justice system, seek to bring themselves within the ambit of a recent decision of this court in an effort to escape the rigors of conviction under this state's recidivist law. The issue here, as framed by the Chief Justice in his order of July 11, 1980, is:
May a personal restraint petition be used to attack an habitual criminal finding under RCW 9.92.090, on the basis that prior convictions used to support the finding resulted from constitutionally deficient guilty pleas?
Under the circumstances here concerned, except as to one petitioner, we answer in the negative and deny the petitions.
Donald Hemphill was found guilty by a Lewis County jury of being a habitual criminal on June 19, 1973. He had previously pleaded guilty to two counts of forgery in California on December 5, 1957, and to three counts of robbery (and was convicted by jury of a fourth count) in California in 1960. In 1973, Hemphill was charged with committing robberies in Lewis, Cowlitz and Thurston Counties. The Thurston and Cowlitz charges were not prosecuted, however, because of Lewis County's decision to bring habitual criminal proceedings.
At trial, Hemphill claimed the habitual criminal statute was unconstitutional as constituting cruel and unusual punishment. He was convicted and on appeal the conviction was affirmed. State v. Hemphill, 11 Wash.App. 1004 (unpublished opinion 1974). His petition for discretionary review was denied by this court. 84 Wash.2d 1005 (1974). This collateral attack is the first time Hemphill has raised an objection to the use of evidence of prior guilty plea convictions in his habitual criminal trial.
Press Lee, Jr., was found guilty by a King County jury of having the status of a habitual criminal on May 10, 1974. He appealed that conviction upon several constitutional grounds, none of which raised the issue presented in State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980). This court confirmed his conviction. State v. Lee, 87 Wash.2d 932, 558 P.2d 236 (1976).
Lee's personal restraint petition lists six crimes to which he pleaded guilty. Now, in this collateral attack, he claims for the first time that on none of those six occasions was he apprised of the nature and consequences of his pleas. Only now does he raise objection to the admissibility of evidence of those convictions at his habitual criminal proceedings.
Phillip Greene was found guilty of being a habitual criminal by a King County jury on March 11, 1968. The conviction was based on two burglary convictions and one robbery conviction in 1954, 1958 and 1962, respectively. Greene appealed and we affirmed. State v. Greene, 75 Wash.2d 519, 451 P.2d 926 (1969). This collateral attack is Greene's first challenge to the validity of the evidence used to establish prior convictions in the habitual criminal proceedings brought against him.
Eugene Thompson was convicted of being a habitual criminal by a Franklin County jury, the judgment being entered June 20, 1975. During that trial, the prosecutor moved to admit copies of three of Thompson's prior convictions, one each from Washington, California and South Dakota. Thompson's attorney objected because it was not evident that counsel had been present at all critical stages leading to those convictions. The trial court admitted the evidence of the convictions.
Thompson appealed on the ground that, even though he was represented by counsel at the time of sentencing for the underlying convictions, he had never been represented or advised of his rights prior to that time. Division Three of the Court of Appeals affirmed his conviction (State v. Thompson, 16 Wash.App. 883, 559 P.2d 1370 (1977)), and this court denied review. 88 Wash.2d 1018 (1977).
This collateral attack is the first occasion that Thompson has objected to the use of evidence of his prior convictions in the habitual criminal proceeding on the ground that he had been unaware of the nature and consequences of his pleas.
Benjamin Malone was convicted of being a habitual criminal by a King County jury on December 27, 1976. He appealed directly to this court. Among other claims, he asserted the trial court erred in admitting a judgment and sentence as evidence of a plea-based conviction without showing the plea was voluntary. Counsel's objection to the evidence clearly pointed to the reason for its inadmissibility. This court transferred the case to the Court of Appeals and there Malone's conviction was affirmed. State v. Malone, 20 Wash.App. 712, 582 P.2d 883 (1978).
Malone petitioned this court for discretionary review. In his petition, he renewed several of his claims but he did not include the contention that the trial court erred in admitting the state's Exhibit 15, a plea-based judgment of conviction for a felony. We denied review. State v. Malone, 91 Wash.2d 1018 (1979).
State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980), concerned the right of a defendant in a habitual criminal trial to challenge the present use in evidence of convictions based on guilty pleas entered before the decision of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There, we upheld the right of a defendant to object to the use of such evidence to prove the essential elements of the present charge in a habitual criminal proceeding. Further, we held that the State has the burden of proving beyond a reasonable doubt that the prior conviction was based on a valid voluntary guilty plea. Holsworth involves direct appeals from convictions based in part on evidence the admissibility of which was challenged at trial and that issue pursued on appeal.
Here, petitioners seek to use Holsworth to support collateral attacks on their convictions as habitual criminals. Contrary to the defendants in Holsworth, only one of these petitioners challenged in the trial court the use of evidence of prior convictions based on pleas of guilty. That one who did raise the issue in the trial court failed to include it in his petition to this court for discretionary review following an adverse decision in the Court of Appeals.
We held in Holsworth, at page 154, 607 P.2d 845:
(T)he attack in a habitual criminal proceeding on the use of pre-Boykin pleas is neither collateral nor retroactive. The challenge instead is to the present use of an invalid plea in a present criminal sentencing process.
That is not this case. Here we are concerned with a collateral attack on a conviction. Each of these petitioners had a trial; each was convicted of the status of being a habitual criminal; and each attacked his conviction directly on appeal. None but Benjamin Malone raised in the trial court and on appeal the issue determined by Holsworth.
In re Myers, 91 Wash.2d 120, 587 P.2d 532 (1978), cert. denied, sub nom. Myers v. Washington, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979), is dispositive of these personal restraint petitions, not Holsworth. In Myers, as in the cases here, a trial was held and a guilty verdict returned. Sentence was imposed and an appeal was taken. The appeal was unsuccessful. State v. Myers, 53 Wash.2d 446, 334 P.2d 536 (1959). Incarceration in a state institution followed. Years later a personal restraint petition was brought by Myers collaterally attacking his conviction on a number of grounds.
All of the grounds urged, except one, could reasonably have been raised by Myers on appeal, if any were seriously regarded. They were not. The one exception was a change in this state's law of presumptions brought about by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977). Myers claimed the benefit of retroactive application of the new constitutional rule as applied to presumptions. His petition was denied. We did not reach the merits of those issues which could reasonably have been raised on appeal but were not, and the retroactivity issue was decided adversely to Myers.
As discussed in Holsworth at pages 156-58, 607 P.2d 845, the principles of Boykin existed in the decisions of the United States Supreme Court and of this court long before Boykin was decided.
For example, in State v. Cimini, 53 Wash. 268, 271, 101 P. 891 (1909), this court stated that in order for a plea to be valid it must be entered "without hope or fear, without improper influence or promise, (and) with full knowledge of his legal and constitutional rights and of the consequences of his act ..." (Italics ours.) The rape conviction of the defendant on a guilty plea was reversed and the case remanded for jury trial in State v. Taft, 49 Wash.2d 98, 102, 297 P.2d 1116 (1956), because the defendant was not told of the nature of the crime and had "pleaded guilty under a misapprehension as to the essential elements of the crime of rape ..." The court ruled that since Taft "did not plead guilty understandingly he was ... denied a constitutional right." State v. Taft, supra at 103, 297 P.2d 1116.
Holsworth, at 158, 607 P.2d 845.
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