State v. Berry
| Decision Date | 15 August 2005 |
| Docket Number | No. 54522-1-I.,No. 54521-3-I.,54521-3-I.,54522-1-I. |
| Citation | 117 P.3d 1162,129 Wn. App. 59 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Keith Duane BERRY, Appellant. |
Catherine McDowall, King County Prosecutors Office, Seattle, WA, for Respondent.
Dana Lind, Nielsen Broman & Koch, Seattle, WA, for Appellant.
¶ 1 Keith Berry pled guilty to forgery and identity theft in the second degree, and was convicted after a jury trial of possession of methamphetamine and a different count of identity theft in the second degree. He moved to withdraw his guilty plea to identity theft and also moved for a new trial. After both motions were denied, Berry appealed.
¶ 2 Berry's appeal requires us to interpret the identity theft statute, former RCW 9.35.020.1 Berry argues that under that statute, the means of identification used by the defendant must be that of a real person, not merely false identification. He also argues that the statute only outlawed actual use of the means of identification, and not merely obtaining or possessing the identification of another person. He also argues that ineffective assistance of counsel denied him a fair trial.
¶ 3 Because we agree that to commit identity theft the defendant must obtain, possess, use, or transfer the means of identification of a real person, we reverse the trial court's denial of Berry's motion to withdraw his guilty plea. But because actual use of the means of identification is not required, we affirm the trial court's denial of the motion for new trial. We also do not find ineffective assistance of counsel.
¶ 4 This is a consolidated appeal from two cases involving Berry. In one, Berry was charged with forgery and second degree identity theft for events that occurred on February 9, 2003. In the other, Berry was charged with possession of methamphetamine and second degree identity theft for events that occurred on November 21, 2002.
¶ 5 The information for the charges related to events that occurred on February 9, 2003 alleged:
That the defendant KEITH D. BERRY in King County, Washington, on or about February 9, 2003, did knowingly obtain, possess, use or transfer a means of identification or financial information, to wit: a driver's license with the name and address of Tim Davis, with the intent to commit, or to aid or abet, any crime and obtained an aggregate total of credit, money, goods, services, or anything else of value that was less than $1500 or obtained no credit, money, goods, services or anything of value;. . . .
¶ 6 Berry entered an Alford2 plea to both the forgery and the second degree identity theft charges, and agreed to let the trial court use the certification for determination of probable cause to find a factual basis for his plea and sentencing. The certification provided the following facts:
On 2-9-03 at about 1913 hours, Keith Berry approached a clerk inside the Home Depot home improvement store located at 1715 S. 352st., Federal Way, King County, WA., and attempted to purchase $139.57 in merchandise with a business check.
Berry presented identification in the name of Timothy J. Davis, and filled out a business check in the business account of Computech dba. Tim J. Davis.
The clerk, Michelle Jones, felt that the business check was suspicious, and a check verification revealed that the check was forged. The Federal Way police department was notified, and Officer S. Swanson responded and arrested Berry. Berry subsequently admitted to committing the fraud, stating that he knew that the check and ID he presented were forgeries.
Detective S. Parker contacted the bank listed on the check Berry presented, Bank of America, and determined that the account holder information and routing number were fictitious, however the checking account number was a valid Bank of America checking account.
Detective Parker then contacted the account holder for the checking account number on the bottom of Berry's check, Herb Paulson. Paulson subsequently provided a telephonic statement advising that he does not know Keith Berry, did not give Berry permission to use his checking account number, or permission to access or sign on his checking account.
¶ 7 The trial evidence in the other case was that Berry was a passenger in a car that was pulled over for a traffic violation. During the stop, Berry was arrested for possession of methamphetamine. A search incident to his arrest produced credit cards, checks, and a temporary driver's license in the name of "Robert Cronk." Berry admitted he had purchased the credit cards, checks, and identification, and stated that although he intended to use them, he had not yet done so.
¶ 8 Joan Cronk, Robert Cronk's widow, testified that she served as executor of Cronk's estate and that she did not give Berry permission to possess or use any of Robert's credit cards or accounts. She also testified that a number of charges were made on Robert's credit cards after he died, but she suspected that a woman with whom Robert had been living at the time of his death had made the charges. Berry was found guilty of possession of methamphetamine and second degree identity theft.
¶ 9 At sentencing, Berry moved pro se to withdraw his guilty plea and for a new trial. New counsel was appointed, and filed a motion to withdraw Berry's guilty plea for second degree identity theft on the grounds that the certification for probable cause failed to establish a factual basis for the plea. Berry also moved for a new trial on the ground that the to-convict instruction allowed the jury to find him guilty of identity theft without finding that he had used the victim's means of identification, an element Berry argued was required. He also argued that there was insufficient evidence of use to support a conviction.
¶ 10 The trial court denied both motions. At the same hearing, Berry also argued pro se a motion to dismiss, which the trial court denied. The court imposed standard range, concurrent sentences.
¶ 11 We review for an abuse of discretion a trial court's denial of a motion to withdraw a guilty plea.3 A court abuses its discretion if it bases its decision on clearly untenable or manifestly unreasonable grounds.4
¶ 12 Berry argues that the trial court erred by denying his motion to withdraw his guilty plea to second degree identity theft.5 Because Berry moved to withdraw before his judgment and sentence, the motion is governed by Superior Court Criminal Rule (CrR) 4.2(f): "[t]he court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice."
¶ 13 Berry argues his plea was not voluntary, because it lacked a factual basis. CrR 4.2(d) provides that "[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." Our Supreme Court has commented that "[t]he establishment of a factual basis. . . relates to the defendant's understanding of his or her plea."6 "[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts."7 Therefore, "[t]he purpose behind the factual basis requirement is to protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge, but without realizing that his conduct does not actually fall within the charge."8
¶ 14 In its determination of "whether a factual basis exists for a plea, the trial court need not be convinced beyond a reasonable doubt that the defendant is in fact guilty."9 Instead, the court may determine that "a factual basis exists if there is sufficient evidence for a jury to conclude that the defendant is guilty."10
¶ 15 Former RCW 9.35.020 provided:
(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
(2)(a) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute identity theft in the first degree. Identity theft in the first degree is a class B felony.
(b) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony.[11]
¶ 16 Berry argues that the certification for determination of probable cause was insufficient to support the crime of identity theft because it did not purport to name a real person. The certification in pertinent part reads:
Berry presented identification in the name of Timothy J. Davis, and filled out a business check in the business account of Computech dba. Tim J, Davis. . . . Detective S. Parker contacted the bank listed on the check Berry presented, Bank of America, and determined that the account holder information and routing number were fictitious, however the checking account number was a valid Bank of America checking account.
Detective Parker then contacted the account holder for the checking account number on the bottom of Berry's check, Herb Paulson.
The only real person named in the certification was Herb Paulson. But Berry was not charged with identity theft of Herb Paulson. Instead, he was charged in relevant part with using "a means of identification or financial information, to wit: a driver's...
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