Ray v. State

• Decision Date: 21 June 1999
• Docket Number: No. 24092.,24092.
• Citation: 982 P.2d 931,133 Idaho 96
• Parties: Donald P. RAY, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

982 P.2d 931

133 Idaho 96

Donald P. RAY, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 24092.

Supreme Court of Idaho, Boise, January 1999 Term.

June 21, 1999.

Rehearing Denied August 24, 1999.

Kehne Law Office, Boise, for appellant. Rolf M. Kehne argued.

Hon. Alan G. Lance, Attorney General; Kenneth M. Robins, Deputy Attorney General, Boise, for respondent. Kenneth M. Robins argued.

TROUT, Chief Justice.

This is an appeal from the district court's order denying the appellant, Donald P. Ray's (Ray) claims for post-conviction relief following an evidentiary hearing.

I. BACKGROUND

In 1994, Ray was living with his sister, D.U. and the victim, D.U.'s prepubescent daughter. Sometime during that year, D.U. discovered a videotape, recorded by Ray, which depicted the victim sleeping on the couch and zoomed in on the victim's crotch area. Ray also hid the video camera in the bathroom in an attempt to videotape the victim using the bathroom. D.U. informed the victim's counselor, child protection services and the police about the video tape.

D.U., following instructions from Detective Ken Smith (Smith), told Ray that he should contact Smith and warned him that if he "jerked Smith around" he would end up in jail. Ray made an appointment to meet with Smith and drove himself to the police station for the appointment. At the police station, Ray checked in with the front desk and Smith escorted Ray to an interrogation room. Ray asked Smith if he was going to be charged with a crime and informed Smith that if he was to be charged, he wanted an attorney. Smith informed Ray that an attorney did not need to be involved at that time. Smith then left the room, locking the door. Ray later discovered that the door was locked when he attempted to leave the room.

After approximately thirty minutes, Smith returned and began questioning Ray, although at no time did Smith advise Ray of his Miranda rights. While being taped, Ray confessed that he had made the tapes and that he was sexually aroused by the tapes. Approximately one month later, Ray was charged with sexual abuse of a minor under the age of sixteen. Ray pled guilty to the charge and was sentenced to ten years, consisting of three years fixed followed by seven years indeterminate. As part of Ray's plea agreement, the prosecutor agreed not to pursue various theft cases. Ray was not informed that as a result of his guilty plea he would be required to register as a sex offender until his sentencing hearing.

Ray subsequently filed a petition for post-conviction relief with the district court asserting, along with claims not at issue in this appeal, that his defense counsel was ineffective because he did not move to suppress Ray's confession and because he did not inform Ray of the sex offender registration requirement prior to entry of his guilty plea. Ray also claimed that his guilty plea was invalid because he was not informed by the district judge that he would be required to register as a sex offender prior to entry of his plea. After an evidentiary hearing on the issues, the district judge denied Ray's petition.

Specifically, the district judge found at the evidentiary hearing that (1) Ray knowingly, competently and intelligently entered his guilty plea; (2) that whether Ray's confession would have been suppressed was doubtful; (3) that Ray would have been convicted by a jury even if the confession had been suppressed; (4) that Smith, had he testified, would have been a credible witness; (5) that counsel adequately and competently represented Ray with regard to the motion to suppress; and (6) that Ray had not been informed of the sex offender registration requirement prior to sentencing. The district judge held in a later order that sex offender registration was a collateral consequence of pleading guilty and thus, the court was not required to disclose the registration requirement to Ray prior to entry of his plea. The district judge also held that counsel's failure to inform Ray of the sex offender registration requirement was not ineffective assistance of counsel.

II. DISCUSSION

A. Standard of Review.

A petitioner for post-conviction relief has the burden of proving the allegations upon which his claim is based by a preponderance of the evidence. I.C.R. 57(c); McCoy v. State, 129 Idaho 70, 72-73, 921 P.2d 1194, 1196-97 (1996). The district judge's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous. McCoy, 129 Idaho at 73,921 P.2d at 1197. A denial of post-conviction relief will not be disturbed on appeal where there is substantial and competent evidence supporting the denial. Id.; State v. Pizzuto, 119 Idaho 742, 778, 810 P.2d 680, 716 (1991).

B. Ray's guilty plea was not rendered involuntary by the court's failure to inform him, prior to entry of his plea, that he would be required to register as a sex offender.

Ray contends that the sex offender requirement is a direct consequence of his guilty plea and thus, the district judge, by failing to notify him of the requirement, violated Idaho Criminal Rule (I.C.R.) 11(c) and his guilty plea is thus invalid. The State, however, urges this Court to follow the majority of states and determine that registration is a collateral consequence of pleading guilty and the failure to inform Ray does not invalidate his plea. We agree with the State and accordingly hold that sex offender registration is a collateral consequence of a guilty plea. Therefore, the district judge's failure to inform Ray prior to entry of his plea that he would be required to register as a sex offender does not invalidate his plea.

A criminal defendant by pleading guilty waives certain constitutional rights, including the privilege against self-incrimination, the right to a jury trial and the right of confrontation. State v. Carrasco, 117 Idaho 295, 297, 787 P.2d 281, 283 (1990). Waiver of these constitutional rights will be upheld if the entire record demonstrates the waiver was made voluntarily, knowingly and intelligently. Id. at 298, 787 P.2d at 284. Whether a guilty plea is voluntary and understood entails a three-part inquiry, one prong of which is whether the defendant understood the consequences of pleading guilty. State v. Colyer, 98 Idaho 32, 34, 557 P.2d 626, 628 (1976). The plea must be entered with "a full understanding of what the plea connotes and of its consequences." State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991) (quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274, 280 (1969)).

In Idaho, the trial court must follow the minimum requirements of I.C.R. 11(c) in accepting guilty pleas. Mauro, 121 Idaho at 180, 824 P.2d at 111 (quoting State v. Detweiler, 115 Idaho 443, 446, 767 P.2d 286, 289 (Ct.App.1989)). If the record indicates that the trial court followed the requirements of I.C.R. 11(c), this is a prima facie showing that the plea is voluntary and knowing. Id. One of the requirements of I.C.R. 11(c) is showing that "[t]he defendant was informed of the consequences of the plea, including minimum and maximum punishments, and other direct consequences which may apply." I.C.R. 11(c)(2). At a minimum, a defendant must understand the possible maximum penalty which would be imposed as a consequence of his plea. Colyer, 98 Idaho at 36, 557 P.2d at 630. However, determining what constitutes a "direct" as opposed to a "collateral" consequence of a guilty plea is a more difficult matter.

In Carter v. State, 116 Idaho 468, 776 P.2d 830 (Ct.App.1989), the Idaho Court of Appeals addressed whether the future possibility of persistent violator status was a collateral, rather than direct, consequence of a guilty plea. The court held that the consequence was collateral, focusing on the fact that the defendant would only be subject to the persistent violator statute if he committed another felony. Thus, the potential consequence was entirely within the defendant's power to prevent. Id. at 468-69, 776 P.2d at 830-31. Similarly, in Brooks v. State, the Idaho Court of Appeals held that the trial court was not required to inform the defendant of parole eligibility requirements when accepting his plea. Brooks, 108 Idaho 855, 857-58, 702 P.2d 893, 895-96 (Ct.App.1985).

A number of jurisdictions have addressed the question Ray presents in this appeal; whether sex offender registration is a direct or collateral consequence of a guilty plea. State v. Ward, a Washington case, stands for the majority view that sex offender registration is a collateral consequence of a guilty plea and thus, the court's failure to notify a defendant of the requirement does not invalidate a guilty plea. State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1075-76 (1994). The majority of jurisdictions reason that requiring a sexual offender to register is largely remedial in purpose, not punitive, and is intended to facilitate law enforcement and protect children.¹ In contrast, California, in In re Birch held that sex offender registration was a "grave and direct consequence of [a] guilty plea." In re Birch, 10 Cal.3d 314, 110 Cal.Rptr. 212, 515 P.2d 12, 17 (1973).

In Ward, the Washington Supreme Court had before it not only the issue of whether registration was a direct or collateral consequence of pleading guilty, but also whether registration violates the ex post facto clause. Ex post facto analysis requires a determination of whether the registration requirement further punishes the offender or whether it serves a predominately regulatory purpose. Ward, 869 P.2d at 1072-74. In holding that sex offender registration was a collateral consequence of a guilty plea, the Ward court focussed on the fact that, "[a]lthough the duty to register flows from [the defendant's] conviction for a felony sex offense, it does not enhance [the defendant's] sentence or punishment." Id. at 1076. The court referred to its analysis under the ex post facto clause to state that...