State v. Cosner, s. 43154
| Decision Date | 09 January 1975 |
| Docket Number | 43193 and 43208,Nos. 43154,s. 43154 |
| Citation | 85 Wn.2d 45,530 P.2d 317 |
| Parties | The STATE of Washington, Respondent, v. Eugene Ray COSNER, Petitioner. In the Matter of the Application for a Writ of Habeas Corpus of Eugene T. CRAMER, t.n. Tommy Owen Hartz, Petitioner, v. Charles MORRIS, Secretary of the Department of Social and Health Services for the State of Washington, Respondent. In the Matter of the Application for a Writ of Habeas Corpus of Gary CHRISTIAN, Petitioner, v. Charles MORRIS, Secretary of the Department of Social and Health Services for the State of Washington, Respondent. |
| Court | Washington Supreme Court |
Richard Emery, Legal Services Center, Seattle, for petitioners.
William C. Collins, Asst. Atty. Gen., Olympia, for respondents.
Two applications for writs of habeas corpus and one petition for post-conviction relief pursuant to CrR 7.7 have been consolidated for consideration. They raise the question of whether the petitioners, prior to their respective guilty pleas, received adequate notice of mandatory minimum penalties imposed pursuant to the 'firearm' statute, RCW 9.41.025, 1 and the 'deadly weapon' statute RCW 9.95.040, 2 for the use of guns in the commission of crimes.
Petitioner Cosner was initially charged with first-degree assault and second-degree burglary. Plea bargaining ensued as a result of which he was charged by amended information with second-degree assault and second-degree burglary to which charges be entered pleas of guilty. Both counts of the amended information essentially alleged that he committed the respective offenses while possessed of a 'firearm.' At the time petitioner entered his guilty pleas, the State pointed out to the trial judge that the language of the charges precluded the possibility of probation, and also that it was requesting a special finding pursuant to RCW 9.95.015, 3 which in turn would require, under RCW 9.95.040, the imposition of a mandatory minimum prison term by the Board of Prison Terms and Paroles. Counsel for petitioner acknowledged that he was aware of the State's position and would stipulate that petitioner was armed at the time of commission of the crimes charged. In response to a direct question by the trial judge, petitioner admitted he was armed with a shotgun when he engaged in the offenses involved.
At the time of sentencing, counsel for petitioner once again indicated awareness of the special finding requested by the State and stated he was not going to argue against it. In the course of the hearing, it was made clear to petitioner and his counsel that the minimum mandatory term would be 7 1/2 years inasmuch as petitioner had been previously convicted of a felony. The special finding of being armed with a deadly weapon was entered and is part of the record herein.
Petitioner Cramer, also known as Tommy Owen Hartz, was charged by information with 4 counts of robbery, 2 counts of kidnapping, 1 count of second-degree burglary and 1 count of second-degree assault. All counts charged the crimes were committed while petitioner was 'armed with a shotgun.' Plea negotiations resulted in entry of pleas of guilty to 2 counts of robbery. In response to a direct question from the trial judge, petitioner acknowledged that at the time he committed the offenses he was armed with a deadly weapon and a special finding was so made by the trial judge.
Prior to petitioner's pleas of guilty, colloquy ensued between the trial judge and counsel for the State and for petitioner concerning the effect of the entry of a special finding regarding use of a firearm during commission of the crimes. The trial judge at this time questioned counsel as to whether the finding would result in a 5-year or a 7 1/2-year mandatory minimum. Both counsel for the State and petitioner advised the trial judge that the mandatory minimum term would be 5 years. Petitioner's counsel further advised the trial judge that petitioner was an intelligent individual and fully understood the consequences of his proposed pleas of guilty. Apparently, petitioner was not advised or told that because of a prior felony conviction the special finding would result in a 7 1/2-year mandatory minimum term. Thereafter, upon petitioner's arrival at the correctional facility, the Board of Prison Terms and Paroles fixed a 7 1/2-year mandatory minimum term pursuant to RCW 9.95.040(2).
Petitioner Christian was charged by amended information with 8 counts of assault in the second degree, 2 counts of robbery, 1 count of burglary, and 1 count of aiding a prisoner to escape. All counts, except the aiding-in-escape charge, alleged that at the time of commission petitioner was armed with a 'deadly weapon,' a 'dangerous weapon,' or a 'firearm.' As a result of plea bargaining, petitioner with advice of counsel ultimately entered pleas of guilty to assault in the second degree, burglary in the first degree, aiding a prisoner to escape, and robbery. In a written 'statement on plea of guilty,' petitioner acknowledged understanding that he would be subject to a 5-year mandatory minimum. In lieu of a separate special finding, the trial judge incorporated into the judgment and sentence a finding that petitioner at the time of committing the crimes involved was armed with a deadly weapon. Thereafter, the Board of Prison Terms and Paroles fixed petitioner's minimum term at 8 1/2 years, including a 7 1/2-year mandatory minimum under RCW 9.95.040(2).
All petitioners contend that the charging parts of the respective informations did not contain adequate allegations to put them on notice prior to their guilty pleas that they would be subject to the enhanced penalties projected by RCW 9.41.025 and/or RCW 9.95.040. They further contend that the allegations of the informations did not give notice of which statute the State was relying upon. Alternatively, petitioners Cramer and Christian assert that they were misinformed during plea negotiations as to the length of the mandatory minimum terms to which they would be subject. In addition, petitioner Christian maintains that the trial judge's incorporation of the 'deadly weapon' finding in the judgment and sentence does not amount to a 'special finding' under RCW 9.95.015 and is therefore a nullity.
The appellate courts of this state have held that when the State seeks to rely upon either RCW 9.41.025 or RCW 9.95.040, or both, due process of law requires that the information contain specific allegations to that effect, thus putting the accused person upon notice that enhanced consequences will flow with a conviction. State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972); State v. Pringle, 83 Wash.2d 188, 517 P.2d 192 (1973); State v. Mims, 9 Wash.App. 213, 511 P.2d 1383 (1973); Miller v. Morris, 10 Wash.App. 694, 519 P.2d 1314 (1974); State v. Smith, 11 Wash.App. 216, 521 P.2d 1197 (1974). Failure of the State to so allege precludes reliance upon the statutes by the trial court or the Board of Prison Terms and Paroles.
We do not propose to recede from these holdings. Rather, we again emphasize the necessity of prosecuting attorneys uniformly adhering to the announced rule. Preferably, compliance should take the form of pleading by statutory language and citation of the statute or statutes upon which they are proceeding, I.e., firearms and/or deadly weapons. Furthermore the written 'Statement of Defendant on Plea of Guilty' as set forth in CrR 4.2(g) should be provided and made a formal part of the record in all applicable cases.
Turning, then, to the instant cases, we do not, under the circumstances here present, deem that the rigidity of the rule is such as to compel the principal relief requested, I.e., nullification of the applicable mandatory minimums. Upon the record before us in each case it is undisputed that: (a) each petitioner was armed with a deadly weapon at the time of committing...
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