State v. Butler

• Decision Date: 24 May 1977
• Docket Number: No. 1659,1659
• Parties: STATE of Washington, Appellant, v. James E. BUTLER, Respondent. (III).
• Court: Washington Court of Appeals

Page 666

17 Wn.App. 666

564 P.2d 828

STATE of Washington, Appellant, v. James E. BUTLER, Respondent.

No. 1659 (III).

Court of Appeals of Washington, Division 3.

May 24, 1977.

Rehearing Denied June 28, 1977.

C. J. Rabideau, Prosecuting Atty., Pasco, for appellant.

John G. Ziegler, Seattle, for respondent.

SIDNEY R. BUCKLEY, Judge Pro Tem. ^*

On June 16, 1972, the defendant pleaded guilty to being a felon in possession of a pistol (RCW 9.41.040) and was sentenced to confinement for not more than 10 years in a state correctional institution. Subsequently, he filed a petition for post-conviction relief. Pursuant thereto, the Court of Appeals ordered the matter to be remanded to the superior court for hearing. As a result of the hearing held April 1, 1975, the trial court found: that during plea negotiations the habitual criminal statute ¹ was mentioned; that the defendant believed the reference was to the second paragraph thereto, the so-called 'big habitual' portion; that the prosecuting attorney could not have brought an action under the second paragraph; and that, therefore, the defendant's plea of guilty was a product of deception and was coercive. Finding the plea not voluntary, the trial court vacated the judgment and sentence. We reverse.

On September 4, 1958, defendant's probation was revoked and judgment and sentence signed finding the defendant guilty of burglary in the second degree and sentencing him to confinement in the Washington State Reformatory for a term of not more than 15 years. During the period between that date and April of 1972 he was only sporadically free of incarceration. He was revoked from parole five times.

In April of 1972, the defendant was charged with the offense of second-degree assault. Pending the trial on that matter, the defendant was convicted in police court of resisting arrest, assault, disorderly conduct and destruction of property, was sentenced to 180 days in jail on each of the four convictions, and was charged with the present charge under RCW 9.41.040 of being a felon in possession of a pistol.

During plea negotiations, the prosecuting attorney informed defense counsel: 'that it looked like Mr. Butler might have a problem with habitual criminal charges here if this has to go to trial.' During discussions, defense counsel informed his client:

. . . I felt it was a strong case and that he should give some serious thoughts to pleading guilty to it in exchange for some other things, dismissal of the first charge and hopefully some favorable treatment in some other places.

. . . if we didn't make a deal here that a habitual criminal was a very real possibility.

. . . that if he went to trial and was convicted of even one more felony that he could--it could involve some enhanced penalties for him.

It was the defense counsel's recollection that: 'the habitual criminal in our conversations was brought up very collaterally, much more collaterally than in most cases when it has come up.' The defendant and defense counsel did not discuss either the nature of the habitual criminal charge or the increased penalty which could result therefrom.

On June 16, 1972, the prosecuting attorney, the defendant and his counsel appeared in open court. The prosecuting attorney presented to the court the result of the plea negotiations: In exchange for the defendant's guilty plea for being a felon in possession of a pistol, the State would recommend that the second-degree assault charge be dismissed; that the defendant be sentenced to the Division of Institutions for a period of not more than 10 years; and that the prosecuting attorney would recommend a 3--year minimum term to the Board of Prison Terms and Paroles, and that the prosecution would cooperate with defense counsel in attempting to dispose of the police court charges, including suspension of the jail sentences. Although not included in the plea bargaining, the prosecuting attorney agreed to cooperate with defense counsel in obtaining help for the defendant with his alcohol and his psychological problems. No mention was made of the habitual criminal possibilities or any agreement that the parties might have with respect thereto.

After the defendant pleaded guilty, the court asked the defendant if his plea was of his own free will and volition and if he realized that in all probability the court would sentence him to the state penitentiary. To both questions the defendant answered, 'Yes, sir.' After determining the defendant had been in possession of the pistol, the court went over the defendant's constitutional rights with him, and being informed by the defendant that he understood those rights and was waiving all of them, the court accepted the plea of guilty.

The plea bargaining, as recited to the court, was in all respects observed. The second-degree assault charge was dismissed, as were the police court charges. The prosecuting attorney recommended to the Board of Prison Terms and Paroles that the defendant's minimum sentence be placed at 3 years. He further recommended psychiatric counseling alcohol counseling and antibuse treatment for the defendant. No habitual criminal charge was filed against the defendant.

The care used by the trial judge in accepting defendant's plea of guilty surpassed any rule or law which, at that time, had been pronounced. By the procedure followed, the defendant's constitutional rights were properly protected. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Woods v. Rhay, 68 Wash.2d 601, 414 P.2d 601 (1966). Failure to specifically follow the later adopted CrR 4.2 and to ask all the questions set forth in that rule does not render the process followed incorrect nor the plea accepted involuntary. With few exceptions (not applicable here), defendant's plea is subject to the rules and law then existing, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); nor does CrR 4.2 have retroactive application.

To hold out the possibility of invalidating countless guilty pleas months and years after their acceptance unquestionably would have an adverse impact on the administration of justice in Washington.

Wood v. Morris, 87 Wash.2d 501, 514--15, 554 P.2d 1032, 1040 (1976).

The record discloses that before accepting his plea, the court determined that the defendant was validly waiving those constitutional rights waived or abandoned by such a plea. The defendant knowingly and intentionally relinquished his right to a jury trial, his right to require the prosecutor to bring witnesses, his right to cross-examine and confront the witnesses, and his right to remain silent during the trial or to testify if he so chose. McCarthy v. United States, supra.

The question of 'waiver,' however, is distinct from the question of 'voluntary.' The trial court determined that the defendant's plea was an intelligent admission of guilt and that he knew the possible and probable consequences of pleading guilty. Thus, the defendant voluntarily pleaded guilty to the extent that he admitted all the elements of the criminal charge with the knowledge of the possible and probable consequences of pleading guilty. But certainly this does not answer the whole question of whether the defendant's act was voluntary.

As used in criminal cases, 'voluntary' is easier to recite than define and probably more often recited than considered. 'Voluntariness' reflects an accommodation of complex values between the rights of society and the rights of the individual wherein neither security nor liberty is sacrificed. Schneckloth v. Bustamonte, supra. Perhaps it is a slight misnomer to say a person voluntarily pleads guilty to a crime if the inference be that the person desired to plead guilty. We sense that most people would rather be doing something else. The measure certainly is not that which a person wants or desires to do.

The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. (Citation oitted.) Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.

McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971).

The alternative may be unpalatable and a difficult choice, but this does not render the plea involuntary. The State's involvement in actual or threatened physical harm or mental coercion overbearing the will of the defendant renders a plea involuntary. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Within the perimeters of this case was a plea involuntary where the defendant may have been under a mistaken belief as to the law and/or the intention of the prosecuting attorney which may or may not have involved a responsible officer of the state?

The first and foremost question is the involvement, if any, of the State. At the conclusion of the remand hearing of April 1, 1975, the court entered findings of fact and conclusions of law which, at least indirectly, indicated an involvement by a responsible representative of the state and further indicated the defendant's belief concerning a possible habitual criminal charge. If the court's findings are supported by substantial evidence, they must be accepted as verities. State v. Bunch, 2 Wash.App. 189, 467 P.2d 212 (1970).

The record fails to support the inference in the findings that the prosecuting attorney made any reference to the habitual criminal statute in the presence of the defendant. Although some discussion was held between the prosecuting attorney and defense counsel in the presence of the defendant...