State v. Armstead
| Decision Date | 24 March 1975 |
| Docket Number | No. 3075--I,3075--I |
| Citation | 533 P.2d 147,13 Wn.App. 59 |
| Parties | STATE of Washington, Respondent, v. Warren ARMSTEAD, Appellant. |
| Court | Washington Court of Appeals |
Christopher T. Bayley, King County Pros. Atty., Thomas H. Wolfendale, Deputy Pros. Atty., Seattle, for respondent.
Defendant pleaded guilty to the crime of robbery. At the time set for sentencing, oral motions were made on defendant's behalf by his retained counsel. The motions sought withdrawal of the guilty plea, substitution of other counsel and a continuance.
The trial court thereupon proceeded to hold a hearing as to the factual basis for the defense motions. At the conclusion of such hearing, the court denied the motions, pronounced judgment and sentenced the defendant Armstead to a penal institution. The case is here on appeal from the denial of defendant's motions with defendant being represented by same counsel as below.
This case was commenced when the defendant Armstead and another party were charged with having committed an armed robbery at the Rainier Jewelers in the Rainier Valley section of Seattle on December 10, 1973. The information so charging them was filed on December 21, 1973. The cases of the two defendants were separated for trial and on March 14, 1974 a jury acquitted the co-defendant.
Thereafter plea negotiations took place between the King County Prosecuting Attorney's Office and counsel for Mr. Armstead. The prosecutor agreed to amend the charge from armed robbery to robbery and to recommend a deferral of sentence and probation on a plea of guilty by Mr. Armstead.
On March 18, 1974 the case came before the Honorable Howard J. Thompson on proceedings for a change of plea. The information was amended by deleting reference to a deadly weapon. A written Statement of Defendant on Plea of Guilty was also filed at that time. It was in the form prescribed by CrR 4.2(g) and fully advised the defendant of his legal rights and the consequences that could follow a guilty plea. That statement after being signed by the defendant, his counsel, and the deputy prosecutor was entered by the court. The defendant thereupon changed his plea to guilty.
Preparatory to sentencing, the Department of Social and Health Services, Division of Institutions, made a presentence investigation and filed its report with the judge to whom the case had been assigned for sentencing. The report recommended that the defendant be sentenced to a penal institution.
The defendant appeared with his counsel before the Honorable Edward E. Henry on May 9, 1974, the day set for sentencing. The defense motions heretofore referred to, including defendant's motion to change his plea to not guilty, were made, denied by the court and the defendant sentenced to a penal institution. The court subsequently ordered the defendant released on bond pending this appeal.
No contention is made that the prosecutor's office did other than it represented to defense counsel it would do. Neither is there any suggestion that there was any legal impediment to the court deferring sentence and granting probation had the court considered the case an appropriate one for so doing.
The following issues are presented on this appeal:
Issue One. Is a motion to withdraw a guilty plea an appealable order?
Issue Two. What is a defendant's burden in seeking to withdraw a plea of guilty?
Issue Three. Did the trial court err in refusing to allow the defendant to withdraw his plea of guilty under the facts of the case?
Issue Four. May this court consider copies of affidavits attached to a brief filed with this court and not otherwise appearing in the record before us?
Issue Five. Did the trial court err in denying the defense motions for a continuance and for a substitution of attorneys?
Issue Six. Is the defendant entitled to be resentenced?
Issue One.
Conclusion. An appeal can be taken from an order denying a motion to withdraw a plea of guilty when judgment and sentence have been entered thereon.
Ordinarily a plea of guilty precludes an appeal. Exceptions to this rule exist, however, in cases where a question is raised as to the validity of the statute violated, the sufficiency of the information, the jurisdiction of the court, or as here, the circumstances under which the plea was entered. State v. Saylors, 70 Wash.2d 7, 9, 422 P.2d 477 (1966). See also State v. Aman, 11 Wash.App. 536, 524 P.2d 418 (1974).
Issue Two.
Conclusion. Under the Criminal Rules for Superior Court adopted July 1, 1973, the burden is on a defendant to establish that the withdrawal of his or her plea of guilty is necessary in order to correct a manifest injustice.
Before adoption of the present Criminal Rules for Superior Court, the procedures for safeguarding a defendant's rights on a plea of guilty were less strict than they now are. As a consequence, motions to withdraw a plea of guilty were formerly addressed to the discretion of the court and such discretion was to be exercised liberally in favor of life and liberty. State v. Saylors, Supra; State v. Harris, 57 Wash.2d 383, 385, 357 P.2d 719 (1960).
The criminal rules, however, set up a strict procedure 'carefully designed to insure that the defendant's rights have been fully protected Before a plea of guilty may be accepted.' State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699, 701 (1974). As a consequence of this, the new rules also changed the burden which a defendant must satisfy in order to withdraw a guilty plea. That burden is expressed in State v. Taylor at page 596, 521 P.2d at page 701:
Under CrR 4.2(f), adopted by this court, the trial court shall allow a defendant to withdraw his plea of guilty whenever it appears that withdrawal is (1) Necessary to correct a (2) Manifest injustice, i.e., an injustice that is obvious, directly observable, overt, not obscure. Webster's Third New International Dictionary (1966). Without question, this imposes upon the defendant a demanding standard.
Issue Three.
Conclusion. The trial court did not err in denying defendant's motion to withdraw his guilty plea.
In support of the motion to withdraw defendant's plea of guilty, defense counsel told the trial court that although he had informed the defendant prior to his plea of guilty that while it was theoretically possible the sentencing judge would not follow the prosecutor's recommendation, he felt the defendant could rest assured that such recommendation would be followed. Also at the time the motion was heard, the defendant told the court he was 'drunk off barbiturates' at the time he pleaded guilty. It is argued from this that defendant's plea of guilty was involuntary and it was error for the trial court to deny the request for a change of plea.
The critical point is the time the guilty plea was entered.
The written Statement of Defendant on Plea of Guilty filed with the court when the plea of guilty was entered advised the defendant in detail as to his legal rights and the consequences of a guilty plea. This document which the defendant signed and acknowledged he had read contained statements that 'I fully understand that the court does not have to follow the Prosecuting Attorney's recommendation as to sentence' and that '(t)he court is completely free to give me any sentence it sees fit no matter what the Prosecuting Attorney recommends.' Also interlined in the signed statement were the handwritten words 'I robbed rainers jewelry store'.
The record further established the following as having taken place before Judge Thompson when the guilty plea was entered:
MR. McKINNEY: I made that clear, your Honor.
MR. McKINNEY: Yes, I have.
On May 9, 1974 when the motion to withdraw the guilty plea was made, in addition to hearing from the defendant and his counsel, Judge Henry heard the testimony of a police detective. The detective testified to his opporunity to observe and talk with the defendant following the guilty plea and said that the defendant gave no indication of any impairment. Though the actual document is not a part of the record certified to this court, the statement of facts does reflect that the judge also had benefit of the presentence report and that the report quoted the defendant as to his involvement in the robbery.
At the time the court ruled on the motion to withdraw defendant's guilty plea, it thus had before it and in the record ample evidence both as to defendant's admissions of guilt and as to the guilty plea having been made knowingly and voluntarily.
The court did not err in holding the defendant had not sustained his burden of proving that a withdrawal of the guilty plea was necessary to correct a manifest injustice. As stated in State v. Taylor at page 597, 521 P.2d at page 701:
Greater safeguards have been thrown around a defendant at the critical time of accepting his plea of guilty. Every effort has been made to ascertain that the plea of guilty is made voluntarily, with understanding and with reasonable knowledge of the important consequences. That being the case, trial courts should exercise greater caution in setting aside a guilty plea once the required safeguards have been...
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...this court. State v. Murphy, 35 Wash.App. 658, 662, 669 P.2d 891 (1983), review denied, 100 Wash.2d 1034 (1984); State v. Armstead, 13 Wash.App. 59, 66, 533 P.2d 147 (1975). ...
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...a guilty plea at its discretion, and "such discretion was to be exercised liberally in favor of life and liberty." State v. Armstead, 533 P.2d 147, 149 (Wash. Ct. App. 1975). 6. At the time, Indiana Code section 35-4.1-1-6 (b) After entry of a plea of guilty but before imposition of sentenc......
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