State v. Durham, 2076--II

Decision Date04 January 1977
Docket NumberNo. 2076--II,2076--II
Citation16 Wn.App. 648,559 P.2d 567
PartiesThe STATE of Washington, Respondent, v. Anderson DURHAM, Appellant.
CourtWashington Court of Appeals

Michael D. Smith, appointed, Tacoma, for appellant.

Joseph D. Mladinov, Sp. Counsel, Donald F. Herron, Pros. Atty., Tacoma, for respondent.

REED, Judge.

Defendant Anderson Durham appeals from a Pierce County Superior Court order denying his petition under former CrR 7.7 1 for postconviction relief from a judgment and sentence entered on his plea of guilty to second-degree assault. Defendant's contention is that his plea was equivocal and should not have been accepted. For the reasons set forth herein we affirm the order of the trial court denying the relief sought.

Defendant was first charged by information filed April 17, 1973 with assault with intent to kill one Thomas Wiegand by shooting him with a firearm, a .25-caliber pistol. As the result of the plea negotiations, defendant appeared before the trial court on February 4, 1974 and entered a plea of guilty to an amended charge of second-degree assault which alleged he had willfully inflicted grievous bodily harm on Wiegand, but omitted any reference to the gun.

The State presented no witnesses nor did it outline in narrative form the evidence it would present to support a conviction. The deputy prosecutor did, however, make the following statement:

At this time, Your Honor, the State is moving to amend its complaint to charge second degree assault by means of infliction of grievous bodily harm upon the person of one Thomas Wiegand by Mr. Durham. The reasons for this is: it is part of the pretrial negotiations as well. Your Honor, the firearm which was involved in the first degree assault was not the defendant's firearm, and the defendant would be talking in terms of self defense . . . with reference to the first part of the action, but not the second part of the action. . . . After the dust had settled, so to speak, the fire continued. So for those reasons and with the understanding the defendant is intending to plead guilty to the amended information, Your Honor, the State is moving to amend.

I think that might be explained in some more detail.

(Emphasis added.)

At the same time the State handed up to the court defendant's 'Statement of Defendant on Plea of Guilty' (CrR 4.2(g)) in which he described the circumstances leading up to his being charged as follows:

I, Anderson Durham, approached the victim to ask him why he stole something out of my apartment , an argument started, and he kicked me and pulled the gun out of his coat. I grabbed his arm and during the struggle the gun went off striking the victim. At this time I pulled the gun away from the victim and shoved him against the wooden booth causing his injuries.

The trial judge made no independent inquiry of the defendant concerning the manner in which the assault had been committed, asking him only if he understood that if his plea was accepted there would be no trial and no appeal and that he faced a possible maximum sentence of 10 years. Receiving affirmative responses to these questions, the court accepted defendant's plea and he was subsequently sentenced to a prison term of 10 years.

Defendant filed two petitions for post-conviction relief with this court, alleging in one a failure of the prosecuting attorney to abide by a promise to recommend probation in exchange for his plea and, in the second that his plea was equivocal and should not have been accepted. These two petitions were consolidated by this court and the matter referred to Pierce County Superior Court for a determination on the merits of each claim. After hearing evidence, both issues were resolved against defendant, who appeals only with respect to the plea issue.

This case comes hard upon the heels of our Supreme Court's decision in State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976) and our decision in State v. Iredale, 16 Wash.App. 53, 553 P.2d 1112 (1976), 2 both of which construed CrR 4.2 3 as it relates to the acceptance of guilty pleas. In Iredale, we struck down a guilty plea couched in terms of self-defense because it raised grave doubts as to whether defendant understood the nature of the charge against him and whether his plea was therefore truly voluntary. In so doing we held that CrR 4.2 restricts the search for evidence of the plea's voluntariness to the record as it exists when the plea is accepted, and that the last sentence of CrR 4.2(d) does not sanction, as it might seem to, a deferral of the inquiry into the factual basis for the plea until entry of judgment. In Newton our Supreme Court, following North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), approves acceptance of an otherwise voluntary plea of guilt even though coupled with a protestation of innocence where there is in the record strong evidence of defendant's guilt and his plea represents "a voluntary and intelligent choice among the alternative courses of action open to (him)." State v. Newton, supra, 87 Wash.2d at 372, 552 P.2d at 687.

Under the Newton court's construction of the rule, the plea taking judge is not restricted to defendant's statements alone, in determining if the plea should be accepted, but may consider information from any reliable source in addition thereto, provided it is made a part of the record. That decision countenanced consideration of a presentence report and did not restrict the judge to the record as it stood at the time the plea was accepted but, as we noted in Iredale, even though CrR 4.2 was in effect at the time of sentencing in Newton, it had not yet become effective on the date the plea was accepted. The results in both Newton and Iredale were influenced by federal court decisions interpreting Federal Rule of Criminal Procedure 11, after which our CrR 4.2 is modeled. See, for example Irizarry v. United States, 508 F.2d 960 (2d Cir. 1974).

In Wood v. Morris, 87 Wash.2d 501, 554 P.3d 1032 (1976), our Supreme Court again construes CrR 4.2 in light of some of the same federal decisions and with particular reference to McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), where Chief Justice Warren states at page 465, 89 S.Ct. at page 1170:

the Rule (Fed.R.Crim.P. 11 (1975)) is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.

Justice Utter, speaking for the Morris court at page 511, 554 P.2d at page 1038 of that opinion, states:

we conclude that our rule of court should be construed as its model had been construed prior to the drafting and adoption of the Washington rule. . . . Thus, the trial judge must make direct inquiries of the defendant as to whether he understands the nature of the charge and the full consequences of a guilty plea. Although not required by the constitution as we read Boykin v. Alabama, supra, under our rule of court the record of the plea hearing, Unsupplemented by any evidence extrinsic to that record, must show on its face that the plea was entered voluntarily and intelligently. . . .

In addition, failure to comply fully with CrR 4.2 requires that the defendant's guilty plea be set aside and his case remanded so that he may plea anew.

(Emphasis added.)

The equivocal nature of a guilty plea, either because it is coupled with an outright protestation of innocence, or because it is laced about with excuses or claims in mitigation, may well be an indication the defendant does not fully understand the nature of the charge against him and that the plea is not truly voluntarily and intelligently made. Cf. State v. Newton, supra; United States v. Gaskins, 158 U.S.App.D.C. 267, 485 F.2d 1046 (1973); Accord United States v. Davis, 516 F.2d 574, 577 (7th Cir. 1975); United States v. Jerry, 487 F.2d 600, 608--10 (3d Cir. 1973).

In the instant case the trial court had before it at arraignment only the original information, the amended information, defendant's CrR 4.2(g) statement, and the prosecutor's cryptic remarks. Despite the invitation contained in the prosecutor's additional statement that 'I think that might be explained in some more detail' no further inquiry was made. Enlightened by the reference hearing and by the briefs and arguments on appeal, we can appreciate the State's contention that defendant's action of shooting Wiegand on the one hand, and shoving him against the booth on the other, were separate and distinct acts--that the first may have been excusable, but the second was not. However, we are hard pressed to so conclude when relegated by CrR 4.2 to those matters which were within the knowledge of the trial court and considered by it at the time the plea was accepted. It would be just as reasonable to conclude that the act of shoving was inseparable from and therefore part of a single effort to disarm the victim by wresting the gun from him.

Even though the information before the trial judge when the plea is tendered need not convince him of defendant's guilt beyond a reasonable doubt, that evidence must be of sufficient statute to support such a finding by the jury before the plea may be accepted. State v. Newton, supra, 87 Wash.2d at 370, 552 P.2d 682. Second-degree assault (RCW 9.11.020) requires there be evidence from which the jury may find beyond a reasonable doubt the defendant 'willfully' inflicted 'grievous bodily harm' upon his victim. State v. Miles, 77 Wash.2d 593, 464 P.2d 723 (1970); State v. Stewart, 73 Wash.2d 701, 440 P.2d 815 (1968). Clearly, neither defendant's explanation of the facts giving rise to the charge nor the prosecutor's explanation provide a sufficient foundation for a finding, either that the injuries were willfully inflicted or that they were grievous in nature or extent. Rather, defendan...

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8 cases
  • Keene, Matter of
    • United States
    • Washington Supreme Court
    • December 31, 1980
    ...that he is guilty." Newton at 370, 552 P.2d 682, quoting United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970); State v. Durham, 16 Wash.App. 648, 653, 559 P.2d 567, review denied, 88 Wash.2d 1014 (1977). The factual basis required by CrR 4.2(d) must be developed on the record 2 (Santobe......
  • Petition of Haverty, 46491
    • United States
    • Washington Supreme Court
    • October 23, 1980
    ...Wash.2d 501, 554 P.2d 1032 (1976); Brumley v. Charles R. Denney Juvenile Center, 77 Wash.2d 702, 466 P.2d 481 (1970); State v. Durham, 16 Wash.App. 648, 559 P.2d 567 (1977). A. Purpose of the Constitutional holdings relating to the fact-finding process and its integrity and reliability are ......
  • Taylor, Matter of, 4619-III-2
    • United States
    • Washington Court of Appeals
    • February 11, 1982
    ...the court need not be convinced of the defendant's guilt beyond a reasonable doubt. See State v. Newton, supra; State v. Durham, 16 Wash.App. 648, 653, 559 P.2d 567 (1977). The necessity for the requirement is set out in the following passage from In re Keene, supra, 95 Wash.2d at 209, 622 ......
  • State v. Rankin
    • United States
    • Washington Court of Appeals
    • June 23, 2003
    ...P.2d 1337 (1981) (quoting McCarthy v. United States, 394 U.S. 459, 467, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)). 3. State v. Durham, 16 Wn. App. 648, 653, 559 P.2d 567, review denied, 88 Wn.2d 1014 4. State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505 (1991) (quoting State v. Osborne, 102 Wn.2d......
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