State v. Chervenell

• Decision Date: 21 April 1983
• Docket Number: Nos. 48344-2,48347-7,s. 48344-2
• Citation: 662 P.2d 836,99 Wn.2d 309
• Parties: The STATE of Washington, Respondent, v. Dale Robert CHERVENELL, Petitioner. The STATE of Washington, Respondent, v. Reginald John CRIGLER, Appellant.
• Court: Washington Supreme Court

Page 309

99 Wn.2d 309

662 P.2d 836

The STATE of Washington, Respondent, v. Dale Robert CHERVENELL, Petitioner.

The STATE of Washington, Respondent, v. Reginald John CRIGLER, Appellant.

Nos. 48344-2, 48347-7.

Supreme Court of Washington En Banc.

April 21, 1983.

John G. Ziegler, Walla Walla, for petitioner.

David R. Wohl, Asst. Appellate Defender, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Deborah J. Phillips, Chris Quinn-Brintnall, Deputy Pros. Atty., Seattle, for respondent.

UTTER, Justice.

These two consolidated cases are appeals from judgments of habitual offender status. In both proceedings, at least one of the convictions relied upon to establish habitual criminal status was based upon a guilty plea. In neither proceeding, however, did the State prove that the defendant, before pleading guilty, had been aware of his Fifth Amendment right not to testify against himself at trial. The issue thus presented is whether the State when relying upon a conviction based upon a guilty plea to establish habitual criminal status, must show that the defendant was aware of this right. We hold that it must and therefore reverse the adjudications of habitual criminal status appealed herein.

In 1978, Dale Chervenell was found guilty of armed robbery. A supplemental information was subsequently filed alleging two prior felonies, one of which was a conviction for possession of over 40 grams of marijuana. That conviction was based on a guilty plea, the validity of which Chervenell challenged at his habitual offender proceeding. The State did produce evidence at that proceeding showing that at the time of his marijuana conviction Chervenell had been advised by the court of his right to a jury trial, his right to confront his accuser, and various other rights; however, it did not show that he had been advised of his right not to testify against himself. Perhaps aware of this omission, the State did offer to call Chervenell's former attorney to prove Chervenell's awareness of his right not to testify but the court rejected such testimony as unnecessary.

Reginald Crigler was convicted of burglary on April 20, 1981, and adjudicated a habitual offender on July 7. The latter adjudication was premised on two prior robbery convictions, one of which was based on a guilty plea. The only evidence offered by the State to prove the validity of that plea was the guilty plea form signed by Crigler and the record of proceedings at the time he pleaded guilty. Though these documents did show that Crigler had been informed of his right to a jury trial and right to confront his accuser, neither showed that Crigler was aware of his right not to testify against himself. Moreover, Crigler took the stand and affirmatively testified that he was not aware of this right.

The failure to show that Chervenell and Crigler were aware of their rights not to testify against themselves at trial renders their past guilty pleas constitutionally invalid. Convictions based upon those pleas can therefore not be used to support an adjudication of habitual offender status.

I

A conviction based upon a guilty plea which is not knowing and voluntary is constitutionally invalid. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274 (1969). Moreover, reliance upon such an invalid conviction in a habitual offender proceeding violates anew the defendant's constitutional rights by renewing the original violation. State v. Holsworth, 93 Wash.2d 148, 157, 607 P.2d 845 (1980). Once the defendant raises the issue of a past conviction's constitutional validity, therefore, the State must prove its validity beyond a reasonable doubt. Holsworth, at 159, 607 P.2d 845.

The seminal case enumerating the conditions which must be satisfied before a court can constitutionally accept a defendant's guilty plea is Boykin v. Alabama, supra. In general, the court must assure that the defendant "has a full understanding of what the plea connotes and of its consequence." Boykin, 395 U.S. at 244, 89 S.Ct. at 1712. One consequence, in particular, of which the defendant must be aware is the resulting waiver of his or her most basic constitutional rights. One of those rights is the privilege against self-incrimination.

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record.

(Citations omitted. Italics ours.) Boykin, 395 U.S. at 243, 89 S.Ct. at 1712. Only by assuring that a defendant is aware of the rights he will have at trial can we make his decision to forego his right to trial "knowing". See In re Keene, 95 Wash.2d 203, 214-15, 622 P.2d 360 (1980) (Utter, C.J., concurring and dissenting).

Thus a defendant who pleads guilty must be aware of his right not to testify against himself at trial. This does not necessarily require express advisement ( see, e.g., Fontaine v. United States, 526 F.2d 514, 516 (6th Cir.1975), cert denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976), and cases cited therein); however, Boykin does require that there be some evidence in the record which shows that the defendant knew of his right to remain silent ( see, e.g., United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970), cert. denied, 401 U.S. 958, 91 S.Ct. 986, 28 L.Ed.2d 242 (1971) (court inferred waiver of privilege against self-incrimination from discussion of guilty plea with counsel. ¹ Moreover, Boykin strongly suggested, though it did not require, that the court should assure sufficient evidence by expressly advising defendants of the rights they waive by pleading guilty. Pursuant to this suggestion, various standards of criminal procedure which have been promulgated since Boykin require such express advice. See H.R.Rep. No. 247, 94th Cong., 1st Sess. 7, reprinted in 1975 U.S.Code Cong. & Ad.News 674, 679 (1974) amendments adding warnings which court must give to a defendant under Fed.R.Crim.P. 11(c) before accepting his guilty plea were "to include those that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), said were constitutionally required"); 3 American Bar Ass'n, Standards for Criminal Justice, Std. 14-1.4, at 14.21-22 (2d ed. 1980); ABA Standards Relating to the Function of the Trial Judge, Std. 4.2(a)(ii) (Approved Draft, 1972).

Our interpretation of Boykin today is in accord with the view we have taken in our previous cases. Wood v. Morris, 87 Wash.2d 501, 554 P.2d 1032 (1976), was the first case in which we dealt with the application of Boykin in this state. In Wood we recognized that Boykin permitted proof of its requirements by extrinsic evidence. Wood, 87 Wash.2d at 506-08, 554 P.2d 1032. We held, however, that our CrR 4.2 went further and required that the record show on its face that the defendant "understands the nature of the charge and the full consequences of a guilty plea." Wood, at 511, 554 P.2d 1032. With respect to the specific rights understanding of which Boykin requires, we said nothing.

State v. Holsworth, supra, simply applied Boykin, which had dealt with attempts to overturn convictions based on guilty pleas, to the use of such convictions in a habitual criminal proceeding. We held:

The defendant in a habitual criminal proceeding may challenge the use of pre-Boykin pleas. The State has the burden of proving beyond a reasonable doubt that the plea was knowingly made after the defendant was apprised of the nature of the offense and of the consequences of pleading guilty to it, including possible maximum and mandatory minimum sentences upon conviction and the constitutional rights to jury trial, to confrontation, and to remain silent, waived by the plea.

(Italics ours.) Holsworth, 93 Wash.2d at 161, 607 P.2d 845. While this language might be construed as requiring a trial court to expressly advise a defendant of the three enumerated constitutional rights in addition to the nature of the offense and consequences of his plea, we do not so read it. It simply applies the requirements of Boykin to the use of past convictions in a habitual criminal proceeding. Hence, the State must show, by extrinsic evidence if need be, that the defendant understood the nature of the offense charged and the consequences of his plea and was aware of his rights to a jury trial, to remain silent, and to confront his accusers.

The State seems to claim that the Fifth Amendment privilege of which Boykin requires awareness is not the right of a defendant not to testify against himself at trial but is instead some vague right to be free from a coerced guilty plea. This assertion is not well taken. Nothing in Boykin supports it. The Supreme Court's enumeration of the right in conjunction with the other trial rights of jury trial and confrontation leaves no doubt that the Court had in mind the right not to testify at trial. As noted above, the whole purpose of advising a defendant of these rights is to allow him to evaluate the State's case. See In re Keene, 95 Wash.2d 203, 213-15, 622 P.2d 360 (1980) (Utter, C.J., concurring and dissenting). An awareness of his right not to testify against himself at trial is crucial to such an evaluation.

II

While the faithful application of Holsworth may reduce the number of convictions upon which the State may rely in habitual offender proceedings, its requirements are based upon constitutional mandates which we must obey. We cannot now retreat from our holding in Holsworth and allow a renewed emasculation of defendants' constitutional rights simply because it may increase convictions of alleged habitual offenders. The federal and state constitutions, as embodied...