State v. Branch

• Decision Date: 25 September 1996
• Docket Number: 63442-4,Nos. 63441-6,s. 63441-6
• Citation: 919 P.2d 1228,129 Wn.2d 635
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. James Delbert BRANCH, Petitioner.

Page 635

129 Wn.2d 635

919 P.2d 1228

The STATE of Washington, Respondent, v.James Delbert BRANCH, Petitioner.

Nos. 63441-6, 63442-4.

Supreme Court of Washington En Banc.

Argued May 29, 1996.

Decided Aug. 1, 1996.

Reconsideration Denied Sept. 25, 1996.

Nielsen & Acosta, Eric J. Nielsen, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Scott A. Peterson, Deputy, Seattle, for respondent.

JOHNSON, Justice.

This case presents the issue of whether the lack of Defendant's signature on his statement of defendant on plea of guilty amounts to a manifest injustice as a matter of law requiring withdrawal of Defendant's plea.In a separate appeal, Defendant requests review of his exceptional sentence.We affirm the Court of Appeals and hold the lack of Defendant's signature on the statement of defendant on plea of guilty does not constitute a manifest injustice as a matter of law so long as the totality of the circumstances supports finding that the plea and its waiver of rights is intelligently and voluntarily made, with full knowledge of its consequences.We also affirm Defendant's exceptional sentence.

FACTS

Over a two-year period, DefendantJames Branch used his position as a general partner in the Pace Equity Plus One Limited Partnership(Partnership) to withdraw nearly $400,000 of Partnership funds that he put to personal use.He pleaded guilty to one count of theft in the first degree on June 17, 1993.The statement of defendant on plea of guilty (plea statement) was signed by his defense attorney, the Prosecutor, and the judge; however, Branch did not sign it.There is no explanation in the record or in the briefs as to why Branch did not sign the form.

At the plea hearing, the Prosecutor questioned Branch extensively regarding his plea statement.With Branch holding a copy of the form in his hand, the Prosecutor went over its contents step-by-step, specifically asking Branch about his understanding of: (1) the elements of the crime; (2) the standard range sentence; (3)the Prosecutor's recommended sentence; (4) the judge's discretion to disregard the recommendation; (5) the sentencing court's ability to use the statement of probable cause as real facts; (6) the rights he was waiving; and (7) his statement admitting guilt.The court then questioned Branch regarding his plea.The judge specifically asked Branch if he understood the sentencing recommendation, the judge's freedom to disregard the recommendation, and the rights he was waiving.Finding Branch was knowingly, voluntarily, and intelligently entering the plea, the court ordered the plea of guilty entered.

The sentencing hearing was held on August 6, 1993, before a different judge.Branch's standard sentencing range was 0 to 90 days.Following statements by the Prosecutor, several of the Partnership investors, defense counsel, and the Defendant, the court sentenced Branch to 48 months' incarceration.In his oral ruling, the judge stated he was primarily relying on the economic impact of the theft and the number of victims to justify the exceptional sentence.The judgment and sentence also ordered Branch to pay $398,652.91 in restitution.The judge entered the following findings of fact and conclusions of law in support of the exceptional sentence:

The court finds that there were 180 victims, that the loss as a result of defendant's criminal conduct, that the crime involved planning, a lengthy period of time, and abuse of trust.

....

The court concludes that defendant's crime constitutes a major economic offense justifying an exceptional sentence.

Clerk's Papersat 35.

On August 16, 1993, Branch, represented by new counsel, filed a motion and declaration for new sentence and judgment.A hearing on this motion was held before the same sentencing judge on August 19, 1993.Defense counsel argued Branch had pleaded guilty to a single unauthorized withdrawal of $3,297.87 occurring on October 25, 1989, there was only one victim (not 180), and there was no support in the record for a finding of planning.The court denied the motion, and entered corrected findings of fact and conclusions of law, under CrR 7.8.The corrected findings and conclusions stated:

The court finds that there were 180 victims of defendant's crime, that the loss as a result of defendant's crime was $398,652.91, that defendant planned the crime, that the crime occurred between July 2, 1987, and October 25, 1989, and that defendant committed the crime while in a position of trust as a general partner of the Pace Equity Plus One limited partnership and a signatory on the partnership's bank account;

....

The court concludes that the current offense was a major economic offense because it involved multiple victims, actual monetary loss substantially greater than typical for the offense, considerable planning, abuse of trust, and occurred over a lengthy period of time.The court also concludes that any of these reasons alone would be sufficient to impose an exceptional sentence.

Clerk's Papersat 36.Branch appealed the exceptional sentence and the amount of the restitution.

On June 17, 1994, represented by a third attorney, Branch filed a motion to withdraw his guilty plea.The same judge who accepted Branch's plea denied the motion.In a second appeal, Branch challenged the denial of the motion to withdraw his guilty plea.

The Court of Appeals, in two separate, unpublished per curiam decisions affirmed the denial of Branch's motion to withdraw his guilty plea and the exceptional sentence.We granted Branch's petition for discretionary review on both issues and affirm.¹

ANALYSIS

I

We first address Branch's appeal of the denial of the motion to withdraw his guilty plea.Under CrR4.2(f), a court must allow a guilty plea to be withdrawn whenever it appears withdrawal is necessary to correct a manifest injustice.This rule imposes a demanding standard on the defendant to demonstrate a manifest injustice, i.e., "an injustice that is obvious, directly observable, overt, not obscure."State v. Saas, 118 Wash.2d 37, 42, 820 P.2d 505(1991)(quotingState v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699(1974)).Branch argues the lack of his signature on the plea statement constitutes a manifest injustice because it shows he did not knowingly, intelligently, and voluntarily waive his constitutional rights.

In entering a plea of guilty, a defendant necessarily waives important constitutional rights, including the right to a jury trial, to confront one's accusers, and the privilege against self incrimination.Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274(1969);Wood v. Morris, 87 Wash.2d 501, 505, 554 P.2d 1032(1976);see generally13 Royce A. Ferguson, Jr., Wash. Prac., Criminal Practice and Procedure§ 3212(1984).To be valid, a guilty plea must be intelligently and voluntarily made and with knowledge that certain rights will be waived.Wood, 87 Wash.2d at 505-06, 554 P.2d 1032.Whether a plea is knowingly, intelligently, and voluntarily made is determined from a totality of the circumstances.Wood, 87 Wash.2d at 506, 554 P.2d 1032.

CrR 4.2 contains numerous procedural safeguards designed to insure a defendant's constitutional rights are protected before a guilty plea is accepted.State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699(1974).However, the procedural requirements of CrR 4.2 are not constitutionally mandated.SeeWood, 87 Wash.2d at 511, 554 P.2d 1032;In re Hilyard, 39 Wash.App. 723, 727, 695 P.2d 596(1985).Failure to adhere to the technical requirements of CrR4.2(g) does not in itself result in a constitutional violation or amount to a manifest injustice.Nonetheless, this court has held CrR 4.2 requires that the record of the plea hearing show the plea was entered voluntarily and intelligently.Wood, 87 Wash.2d at 511, 554 P.2d 1032.Although a defendant's signature on a plea statement is strong evidence of a plea's voluntariness, the absence of a signature does not necessarily vitiate the plea's voluntariness.²

We have previously discussed, albeit in a different context, the issue of when a defendant does not sign a written waiver of constitutional rights.In State v. Rupe101 Wash.2d 664, 683 P.2d 571(1984), the defendant argued his confession must be suppressed because he did not sign the written waiver of his Miranda rights.Rupe, 101 Wash.2d at 678, 683 P.2d 571.We disagreed:

An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.

Rupe, 101 Wash.2d at 678, 683 P.2d 571(quotingNorth Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286(1979)).

We find the analysis in Rupe equally applicable in the present context.Branch's plea statement, when examined in conjunction with the verbatim record of proceedings of the plea hearing, establishes his plea was knowing, intelligent, and voluntary.The plea statement fully sets forth the constitutional rights at issue on page two, paragraph five.In response to the Prosecutor's questions, Branch stated that he: (1) had a copy of the form in front of him; (2) had read it and gone through it with his attorney; (3) understood it; (4) knew he was giving up the rights listed on the plea statement; (5) had not been threatened; and (6) had not been promised anything in return for pleading guilty.Branch responded "no" when the judge asked him if he had any questions about the rights he was giving up in pleading guilty.The judge, Prosecutor, and defense attorney all signed the plea form, and the record is silent as to why Branch did not sign it.³In light of all this evidence contained in the record of the plea hearing, we find...