State v. Calvert

Decision Date24 October 1995
Docket Number13909-3-III,Nos. 13898-4-II,s. 13898-4-II
Citation79 Wn.App. 569,903 P.2d 1003
CourtWashington Court of Appeals
PartiesThe STATE of Washington, Respondent and Cross Appellant, v. John Leonard CALVERT, Appellant.

Paul J. Wasson, Spokane, for Appellant.

David M. Soukup, Deputy Prosecuting Attorney, Colville, for Respondent.


John Calvert pleaded guilty to one count of residential burglary and five counts of forgery. He contends on appeal that the pleas were not made voluntarily because he suffered a concussion when hit on the head with a baseball bat nine days earlier. The State cross-appeals the calculation of Mr. Calvert's offender score and the imposition of an exceptional sentence downward. We affirm.

Sometime in April 1993, Mr. Calvert's ex-wife, Kennie, stole a checkbook from her mother's home and began forging checks on it. In about a week's time, Mr. Calvert deposited several of these checks in an account he owned jointly with his eleven-year-old son. On May 21, 1993, Mr. Calvert stole a car in Spokane and on May 27 he entered his former mother-in-law's house without permission and stole firearms. Eventually he was charged by information with first-degree burglary with a deadly weapon enhancement (RCW 9A.52.020(1); 9.94A.125; 9.94A.310(3)(b); 9A.08.020(2)(c), (3)), taking a motor vehicle without permission (RCW 9A.56.070(1)), and six counts of forgery (RCW 9A.60.020(1); 9A.08.020(2)(c), (3)).

After negotiations with Mr. Calvert, the State moved to amend the charges to one count of residential burglary (RCW 9A.52.025(1)) and five counts of forgery. The first-degree burglary and motor theft charges were dropped, the State agreed not to charge him with possession of marijuana, and Mr. Calvert agreed to plead guilty to the amended charges. He signed the plea statement on August 27, 1993. Nine days earlier, he had been attacked during a drunken brawl, struck with a baseball bat and treated for bruises in an emergency room for about three hours.

Pursuant to the plea bargain, the State agreed to recommend a sentence of fifty-seven months, based on an offender score of seven for the residential burglary and counting two prior felony convictions. (The State agreed to recommend eighteen months for the forgery counts, to run concurrently with the residential burglary sentence.) At the hearing on the guilty plea, the judge read Mr. Calvert his rights, asked him if he understood that he agreed to give up those rights and asked him how he pleaded as to each charge. He then asked Mr. Calvert to tell in his own words what he did on the days he committed the crimes. The judge accepted his guilty plea and set a date for the sentencing hearing.

On September 27, 1993, Mr. Calvert moved to withdraw his guilty plea. His attorney submitted an affidavit and hospital records (not contained in the record on appeal) to support his contention that the head injuries from the baseball bat rendered his client incompetent to voluntarily enter a plea of guilty. Mr. Calvert was admitted to Eastern State Hospital on October 15 for a fifteen-day observation. Staff Psychiatrist George Wang determined at the close of the observation period that there was nothing to substantiate Mr. Calvert's claim of head injury or his incompetence to plead guilty.

At the hearing on the motion to withdraw the guilty plea on January 21, 1994, the defense submitted the telephonic testimony of psychiatrist John Moulton, who concluded that Mr. Calvert more probably than not sustained a concussion nine days before he pleaded guilty. Dr. Moulton's diagnosis relied heavily on the eyewitness accounts of three cell mates, who described Mr. Calvert as distracted, occasionally unaware of his surroundings, and suffering from serious injuries, including a broken arm and broken ribs. Dr. Wang testified and noted the letters from Mr. Calvert's cell mates contained inconsistencies which made him doubt their truthfulness. He also testified that Mr. Calvert had told him he pleaded guilty because the prosecutor agreed to drop some charges. Based on his observation of Mr. Calvert's demeanor during the taking of the plea and on Dr. Wang's opinion, the trial judge denied the motion to withdraw the guilty plea.

The sentencing hearing was held February 18, 1994. The judge had asked the parties to address whether any two or more of the forgeries constituted the "same criminal conduct" and could be counted as one crime pursuant to RCW 9.94A.400(1)(a). 1 Both parties agreed that two of the checks were presented to the bank on the same day, although the State argued they could not have been forged or deposited at the same moment. The court found that these two checks should be counted as one forgery and computed Mr. Calvert's offender score as six, including the four other concurrent crimes and two previous felony drug convictions.

The court then found "substantial and compelling reasons" that the presumptive range was excessive, including: (1) although Mr. Calvert played an active role in the forgeries, his ex-wife was the principal; (2) a forger should not be sentenced the same as a violent offender; (3) although the bank was the ultimate victim, this was basically an offense against family members, not necessitating long-term incarceration to protect the public; and (4) all the forgeries were part of "one incident". Treating the forgeries as one offense, the court reached a standard range of fifteen to twenty months and imposed seventeen months. 2 The State objected to computation of the offender score and to the imposition of an exceptional sentence downward.

Mr. Calvert's appeal of the denial of his motion to withdraw the guilty plea (cause 13898-4-III) was consolidated with the State's cross appeal of the exceptional sentence (cause 13909-3-III) for review.

A. Voluntary Guilty Plea

Mr. Calvert contends his plea of guilty was not entered into voluntarily because his head injury rendered him incompetent. He argues he suffered a concussion due to blows from a baseball bat only nine days before the guilty plea and this, combined with the testimony of his cell mates and Dr. Moulton, establish he was not competent to understand his constitutional rights or to voluntarily waive those rights.

The trial court must allow a defendant to withdraw a guilty plea if withdrawal is necessary to correct a "manifest injustice", i.e., an injustice that is obvious and observable. CrR 4.2(f); State v. Weaver, 46 Wash.App. 35, 40, 729 P.2d 64 (1986), review denied, 107 Wash.2d 1031 (1987). Because of the many safeguards surrounding a plea of guilty, the manifest injustice standard is a demanding one. Weaver, 46 Wash.App. at 41, 729 P.2d 64; State v. Hystad, 36 Wash.App. 42, 45, 671 P.2d 793 (1983). We find no manifest injustice here.

The trial court is vested with broad discretion in judging a defendant's mental capacity to make a plea of guilty. State v. Osborne, 102 Wash.2d 87, 98, 684 P.2d 683 (1984). Its determination is made from such considerations as the defendant's demeanor, conduct, personal history past history, medical and psychiatric reports and the statements of counsel. Osborne, 102 Wash.2d at 98, 684 P.2d 683. An expert's testimony is not, however, binding on the trial court. Osborne. In the case of an allegation of incompetency, the standard is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), quoted in Osborne, 102 Wash.2d at 98, 684 P.2d 683.

Here, the facts support the trial court's decision to accept Mr. Calvert's guilty plea. The emergency room report at the time of his baseball bat injuries does not mention head injuries beyond bruising on his face and neck. The psychiatrists who read this report disagreed whether it indicated he sustained a concussion. Even with a concussion, as his own expert stated, he may or may not have been competent at the time he pleaded guilty. By his own admission, he decided to plead guilty because the prosecutor agreed to drop some charges. Further, the testimony of his cell mates sometimes was inconsistent with the facts: one even remembered a cast on Mr. Calvert's arm and broken ribs, none of which can be accounted for in the medical records.

More importantly, the court engaged in a long colloquy with Mr. Calvert and allowed him to put his crimes and his desire to plead guilty in his own words. As the court specifically stated, Mr. Calvert was articulate and responded normally to all questions. The mere possibility that a head injury may have rendered him incompetent to understand a plea of guilty, without external indications of mental impairment at the time the plea was entered, is insufficient to show manifest injustice. See Osborne, 102 Wash.2d at 98, 684 P.2d 683 (the critical period for determining competency is the time of the entry of the guilty plea). The facts that the plea was made after consultation with defense counsel and reflects a reasonable defense tactic to meliorate multiple charges also support the finding that Mr. Calvert was competent to enter a voluntary guilty plea. Osborne, 102 Wash.2d at 98, 684 P.2d 683; Hystad, 36 Wash.App. at 45, 671 P.2d 793.

B. Offender Score

The State first argues in its cross appeal that the trial court incorrectly computed Mr. Calvert's offender score. The contention is that the court should not have counted two of the forgeries as one offense and that the court inexplicably left out one of the prior convictions in its computations. We find that the trial court was well within its authority to consider two of these crimes as one offense.

Whenever a defendant is sentenced for two or more current offenses, the trial court determines the sentence range for each offense by adding together all other current offenses and prior convictions. RCW 9.94A.400(1)(a); State v. Vike, 125...

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