State v. Frederick

• Decision Date: 08 December 1983
• Docket Number: No. 49274-3,49274-3
• Citation: 674 P.2d 136,100 Wn.2d 550
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Daniel W. FREDERICK, Petitioner.

Page 550

100 Wn.2d 550

674 P.2d 136

The STATE of Washington, Respondent, v. Daniel W. FREDERICK, Petitioner.

No. 49274-3.

Supreme Court of Washington En Banc.

Dec. 8, 1983.

Washington Appellate Defender Raymond Thoenig, Seattle, for petitioner.

David McEachran, Whatcom County Prosecutor, Martha Gross, Deputy Pros. Atty., Bellingham, for respondent.

UTTER, Justice.

Defendant Daniel Frederick appeals a habitual offender finding against him, assigning error to the trial court's refusal to dismiss the proceeding. He claims that both of the prior felony convictions relied upon by the State were insufficient to support a habitual offender finding, one because coercion by a private party rendered the underlying guilty plea constitutionally invalid and one because the State failed to prove it would be a felony under present law. We reject Mr. Frederick's claim that outright dismissal was warranted but hold that the trial court erred in going further and completely excluding his proffered evidence of nongovernmental coercion. We therefore remand for a new trial.

On October 14, 1980, Mr. Frederick was found guilty of first degree robbery. The State then filed a supplemental information alleging Mr. Frederick to be a habitual offender. The supplemental information alleged two prior convictions; namely, a conviction of grand larceny on May 7, 1973 and convictions of first degree robbery and first degree kidnapping on November 12, 1976. The latter two convictions, of course, must be treated as one for purposes of the habitual offender statute. See State v. Rinier, 93 Wash.2d 309, 314, 609 P.2d 1358 (1980).

Prior to trial of the habitual offender charge, Mr. Frederick made several motions. First, he sought to exclude evidence of the 1976 convictions on the ground that they were based on an involuntary guilty plea. Second, he sought to exclude evidence of the 1973 grand larceny conviction on the ground that the former grand larceny statute, which made felonious all larcenies of property exceeding $75 in value, included acts which were no longer felonies in Washington. Finally, Mr. Frederick sought dismissal of the habitual offender information if either of his first two motions were granted, since all of the convictions were necessary to prove habitual offender status.

The trial court denied the motion to grant an outright dismissal of the habitual offender information but reserved judgment on the question of whether Mr. Frederick could present his proffered evidence regarding the voluntariness of the 1976 guilty plea to the jury. That evidence consisted largely of the testimony of both himself and one Joe Tharp, a former cellmate, to the effect that Mr. Frederick's codefendant in the 1976 case had threatened to kill Mr. Frederick if he did not plead guilty.

On the day of trial, the court ruled that Mr. Frederick's proffered evidence should not be considered. In making its ruling, the court emphasized the complete lack of any State involvement in the threats against Mr. Frederick.

Mr. Frederick did not then and does not now claim that anyone acting for the State attempted to exert any improper influence or was even aware of his claimed motivation for the plea entered into in open court after full advice of rights and consequences and the expressed denial of any threats.

Report of Proceedings, at 77. The court also noted that it had reviewed a Court of Appeals file for an earlier personal restraint petition based on the same claim and evidence and that that petition had been dismissed as frivolous on its face.

The State then presented its case and Mr. Frederick chose not to put on any evidence. The jury returned a verdict finding Mr. Frederick to be a habitual offender and judgment was so entered. On appeal, the Court of Appeals affirmed. State v. Frederick, 32 Wash.App. 624, 648 P.2d 925 (1982). We granted review and now reverse.

I

A

In upholding the trial court's exclusion of Mr. Frederick's evidence of his codefendant's threats, the Court of Appeals did not reach the question of the effect of nongovernmental coercion. Instead, it held more generally that extrinsic evidence is never admissible to prove the constitutional invalidity of a guilty plea entered after 1976. State v. Frederick, supra at 629, 648 P.2d 925. In doing so, it relied upon Wood v. Morris, 87 Wash.2d 501, 554 P.2d 1032 (1976) in which we held that our CrR 4.2 required a showing on the record that a guilty plea was voluntary. Frederick, at 629, 648 P.2d 925; see Wood, at 511, 554 P.2d 1032. For two reasons, the Court of Appeals reliance on Wood was misplaced.

The first of these reasons is that Wood places limitations solely on the State. CrR 4.2 and our holding in Wood must be limited by their purpose. That purpose is to ensure protection of defendants' rights by making the constitutional validity of guilty pleas more certain. Wood, at 511-12, 554 P.2d 1032. To apply the limitation announced in Wood to defendants as well as the State would have the perverse effect of transforming a mechanism intended to protect constitutional rights into one which makes them more difficult to vindicate. The federal courts have consistently held that, while a record demonstrating a plea's facial validity is strong evidence of constitutional validity, it is not conclusive. See Blackledge v. Allison, 431 U.S. 63, 75, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); Fontaine v. United States, 411 U.S. 213, 214-15, 93 S.Ct. 1461, 1462-63, 36 L.Ed.2d 169 (1973) (per curiam); Camillo v. Wyrick, 640 F.2d 931, 935 (8th Cir.1981).

Even if Wood did apply equally to defendants and the State, it is inapplicable in the present case. We emphasized in Wood that the exclusion of extrinsic evidence of constitutional validity is mandated not by constitutional requirements but by court rule. State v. Chervenell, 99 Wash.2d 309, 314, 662 P.2d 836 (1983); see Wood, at 506-11, 554 P.2d 1032. Yet in a habitual offender proceeding it is the renewed violation of constitutional rights which is of concern. See Chervenell, at 314, 662 P.2d 836; State v. Holsworth, 93 Wash.2d 148, 154-55, 156, 157, 607 P.2d 845 (1980). The additional court rule requirements recognized in Wood apply only on direct appeal and thus do not bar the use of extrinsic evidence in a habitual offender proceeding. ¹ See Chervenell, at 514, 662 P.2d 836; cf. In re Keene, 95 Wash.2d 203, 206, 622 P.2d 360 (1980) (Wood requirement of direct inquiry to ascertain that plea is intelligent and voluntary does not apply to collateral attack in which only constitutional error may be raised). This distinction mirrors that drawn by the federal courts in strictly applying Federal Rule of Criminal Procedure 11, upon which our CrR 4.2 is modeled (Wood, at 509-10, 554 P.2d 1032), on direct appeal but not to petitions for habeas corpus where only constitutional error may be raised. ² Compare McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-74, 22 L.Ed.2d 418 (1969) with United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979).

B

Nonetheless, the State contends, and the trial court agreed, that nongovernmental coercion of which neither the State nor the court is aware does not render a plea involuntary in the constitutional sense. The State points out that the mere presence of unpalatable alternatives does not render a plea involuntary. See State v. Butler, 17 Wash.App. 666, 672, 564 P.2d 828 (1977). For example, entry of a guilty plea in return for dismissal of other charges or a more lenient sentence recommendation does not per se render a plea involuntary. E.g., Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970). This is true even where the plea is entered in return for a dismissal of charges against another. State v. Cameron, 30 Wash.App. 229, 231, 633 P.2d 901 (1981) and cases cited therein.

Such cases are distinguishable from the case at bar, however. In Brady v. United States, supra, the Supreme Court expressly distinguished plea bargaining pressures from threatened physical harm (Brady,[674 P.2d 140] at 750, 90 S.Ct., at 1470) and premised its decision in large part on the legal system's legitimate need for plea bargaining. Moreover, we have recognized that even plea bargaining pressures may, in particular circumstances, render a plea involuntary. See, e.g., State v. Swindell, 93 Wash.2d 192, 198, 607 P.2d 852 (1980) (threats of additional charges made to defendant in absence of counsel rendered plea involuntary); cf. State v. Cameron, supra at 231, 633 P.2d 901 (noting special care which must be taken to assure voluntariness when plea is entered in return for dismissal of charges against another).

While the Court of Appeals stated in State v. Butler, supra, that "[t]he first and foremost question is the involvement, if any, of the State" (Butler, at 673, 564 P.2d 828), this language must be read in light of its facts. The question there was whether a threat had actually been made or whether it existed only in the mind of the defendant. See Butler, at 673-74, 564 P.2d 828. There was no threat actually made by a private party.

We hold that coercion may render a guilty plea involuntary, irrespective of the State's involvement. While prevention of governmental misconduct is certainly a weighty concern, it is merely one means of advancing the most basic goal of our criminal justice system, protection of the innocent by assuring them a fair trial. To hold one in prison who, through no real choice of his or her own, has been denied a fair trial, indeed denied any trial at all, strikes us as the ultimate in injustice. The injustice lies not in the taint on our legal system, but in the more basic wrong of incarcerating one who because of illegitimate threats has been denied any opportunity to prove his or her innocence.

The cases which have considered the issue are in accord with our view. See United States v. Cammisano, 599...