State v. Drum
| Decision Date | 21 January 2010 |
| Docket Number | No. 81498-8.,81498-8. |
| Citation | 225 P.3d 237,168 Wn.2d 23 |
| Parties | STATE of Washington, Respondent, v. Patrick Boyd DRUM, Petitioner. In the Matter of the Personal Restraint Petition of Patrick Boyd DRUM a/k/a Tim Johnes, Petitioner. |
| Court | Washington Supreme Court |
Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Petitioners.
Juelanne B. Dalzell, Thomas A. Brotherton, Jefferson County Prosecutor's Office, Port Townsend, WA, for Respondents.
¶ 1 This case requires us to determine the effect of a stipulation to the sufficiency of the evidence in a drug court contract, as well as whether the inference of criminal intent allowed under RCW 9A.52.040 constitutes an impermissible mandatory presumption. Patrick Drum entered into a contract to participate in drug court, which provided for the eventual dismissal of a residential burglary charge if Drum successfully completed a substance abuse treatment program. The contract required Drum to stipulate that the facts set forth in the investigation reports, witness statements, and laboratory tests were true and sufficient to support a finding of guilt. After waiting in custody for 42 days for a bed to open up at a treatment facility, Drum requested to leave the drug court program. His case was then set for a bench trial, at which the trial court found Drum guilty of residential burglary. The Court of Appeals affirmed Drum's conviction, holding that he waived any right to raise evidentiary issues on appeal and the drug court contract did not violate due process. We affirm Drum's conviction, though on different grounds.
¶ 2 On September 28, 2004, Drum was arrested for residential burglary in Port Townsend. The victim discovered Drum in her kitchen, ran out of her house, and called police. A short while later, a neighbor saw Drum leave the victim's residence and walk into the next yard, where the police arrested him. The State charged Drum with residential burglary, an element of which is the "intent to commit a crime against a person or property" in the residence. Clerk's Papers at 1.
¶ 3 At his preliminary appearance, Drum told the court he had been "highly intoxicated" and had not intended to commit a crime in the residence. Verbatim Report of Proceedings (VRP) at 5. He later claimed he had wanted to use the phone. Drum moved for a reduction in the charge on the ground that he did not intend to commit a crime in the house. The judge denied the motion, noting that intent to commit a crime could be inferred from the unlawful entry.
¶ 4 On October 15, 2004, Drum petitioned for entry into a drug court program so that he could receive treatment for "a significant substance abuse problem." Id. at 20-21. The State conceded that Drum's offense was likely substance abuse related.
¶ 5 On October 29, 2004, Judge Craddock Verser held a hearing to approve Drum's petition for entry into drug court. At the hearing, Drum presented a signed drug court contract (Contract). The Contract contained the following relevant language:
Defendant agrees:
. . . .
16. That it is the Judge's decision to determine when the defendant has earned the ability to graduate from the Program and to determine when termination from the Program will occur.
17. That if the defendant chooses to leave the Program within the first two weeks after signing the Drug Court Contract, withdrawal will be allowed, this contract will be declared null and void, and the defendant will assume prosecution under the pending charge(s) as if this contract had never been agreed to. The defendant agrees that this ability to withdraw from the terms of this contract will cease after the period of two weeks following the effective date of this contract and thereafter the defendant shall remain in the Program until graduation unless his/her participation is terminated by the Court. The defendant further agrees that the ability to withdraw from the terms of this contract will cease within the first two weeks, if he/she has committed a willful violation of this contract for which, in the judgment of the Court, he/she may be terminated from the program.
. . . .
19. If the defendant is terminated from the Program, the defendant agrees and stipulates that the Court will determine the issue of guilt on the pending charge(s) solely upon the enforcement/investigative agency reports or declarations, witness statements, field test results, lab test results, or other expert testing or examinations such as fingerprint or handwriting comparisons, which constitutes the basis for the prosecution of the pending charge(s). The defendant further agrees and stipulates that the facts presented by such reports, declarations, statements and/or expert examinations are sufficient for the Court to find the defendant guilty of the pending charge(s).
. . . .
Defendant acknowledges an understanding of, and agrees to waive the following rights:
1. The right to a speedy trial;
2. The right to a public trial by an impartial jury in the county where the crime is alleged to have been committed;
3. The right to hear and question any witness testifying against the defendant;
4. The right at trial to have witnesses testify for the defense, and for such witnesses to be made to appear at no expense to the defendant; and 5. The right to testify at trial.
My attorney has explained to me, and we have fully discussed all of the above paragraphs. I understand them all and wish to enter into this Drug Court Contract. I have no further questions to ask the Judge.
Suppl. Clerk's Papers at 19, 21-24 (emphasis added). Prior to accepting the Contract, Judge Verser engaged in the following colloquy with Drum:
VRP at 31-32. Drum was remanded into custody until a bed became available at a treatment facility.
¶ 6 Forty-two days later, on December 10, 2004, Drum was still in custody awaiting a treatment placement and asked to be released from the Contract. The court granted the request and set the case for a jury trial. Because Drum's request occurred more than two weeks after the effective date of the Contract, the State moved for a bench trial based on the contract provision waiving the right to a jury trial. The court granted the motion and scheduled a bench trial.1
¶ 7 Trial was held on January 21, 2005. Over the objection of the State, Judge Verser asked for argument and also allowed Drum to address the court. Drum's counsel argued that Drum's intoxication negated the intent element of residential burglary and that, at most, Drum was guilty of first degree criminal trespass. In support of his attorney's contention that he lacked the necessary criminal intent, Drum told the trial court that when he broke into the residence, he was intoxicated and simply wanted to use the phone.
¶ 8 Judge Verser found that there was not enough evidence in the police report to establish the fact of Drum's intoxication. Additionally, he considered Drum's statement about his lack of criminal intent but ultimately found that the police report and the inference of criminal intent arising from Drum's entry into the house established Drum's guilt beyond a reasonable doubt. The court found Drum guilty of residential burglary and imposed a midrange sentence of 13 months. On February 4, 2005, the court filed findings of fact and conclusions of law, which stated that Drum entered the victim's residence without permission with the intent to commit a crime therein.
¶ 9 No direct appeal was filed. On January 3, 2006, Drum timely filed a personal restraint petition alleging in part that his right to appeal was denied because of ineffective assistance of counsel. The State conceded this point. As a result, the Court of Appeals ordered that Drum's personal restraint petition be treated as a constructive late notice of appeal and a motion to file the late notice of appeal, which was granted. The direct appeal and personal restraint petition were consolidated, and direct review was accelerated. The court also appointed counsel for Drum.
¶ 10 On appeal, Drum argued that (1) the evidence was insufficient to convict him of residential burglary because the State had no evidence of his criminal intent; (2) the trial court violated due process by impermissibly inferring his criminal intent and shifting the burden of proof; and (3) the Contract was tantamount to a guilty plea, requiring the same due process protections as apply in that context.
¶ 11 The Court of Appeals affirmed Drum's conviction and denied his personal restraint petition. State v. Drum, 143 Wash. App. 608, 610, 181 P.3d 18 (2008). The court held that Drum waived any right to challenge the sufficiency of the evidence when he signed the Contract, and it therefore refused to address his claim on the merits. Id. at 614-17, 181 P.3d 18. Additionally, the court held that the Contract was not the equivalent of a guilty plea but rather was like a deferred prosecution in that it left the adjudication of guilt for a later date. Id. at 619-20, 181 P.3d 18. We granted Drum's petition for review. State v. Drum, 164 Wash.2d 1025, 195 P.3d 958 (2008).
¶ 12 Drum argues that the Court of Appeals erred in refusing to consider his challenge to...
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