State v. Johnston, s. 2046--I

• Decision Date: 06 May 1977
• Docket Number: Nos. 2046--I,2050--II,s. 2046--I
• Citation: 17 Wn.App. 486,564 P.2d 1159
• Parties: The STATE of Washington, Respondent, v. Frank E. JOHNSTON, Appellant.
• Court: Washington Court of Appeals

Page 486

17 Wn.App. 486

564 P.2d 1159

The STATE of Washington, Respondent, v. Frank E. JOHNSTON, Appellant.

Nos. 2046--II, 2050--II.

Court of Appeals of Washington, Division 2.

May 6, 1977.

David V. Johnson, Port Angeles, for appellant.

Craig Ritchie, Pros. Atty., C. T. Walrath, Deputy Pros. Atty., Port Angeles, for respondent.

REED, Judge.

This appeal involves the consolidation of two causes. In 2046--II, defendant Frank Eugene Johnston appeals from the enhancement of his sentence in a habitual criminal proceeding under RCW 9.92.090, and in 2050--II he appeals from his convictions of attempted escape and grand larceny of a motor vehicle. In 2046--II Johnston alleges (1) that his sentence was improperly enhanced because his plea of guilty was entered without his knowledge of the possibility that he could receive a mandatory minimum sentence of 15 years under the habitual criminal statute, (2) that a California felony conviction was improperly used as a basis for the habitual criminal finding, and (3) that our habitual criminal statutes are unconstitutional. In 2050--II, he contends the trial court erred when it denied his motion for a new trial on the ground that the sheriff failed to subpoena a defense witness. We affirm both judgments and convictions.

The following facts are pertinent to our review. Defendant was initially charged in Clallam County (Cause No. 2046--II) with grand larceny and second-degree burglary. Two days later, on February 28, 1975, defendant pleaded guilty to one count of grand larceny, and the second-degree burglary charge was dismissed. At that time Johnston signed a 'Statement of Defendant on Plea of Guilty Pursuant to Rule 4.2(g).' The statement recited defendant had been informed that grand larceny carries with it a maximum term of imprisonment of 15 years and no mandatory minimum term; additionally the written plea contained the prosecutor's recommendation that sentence be deferred and that defendant receive '90 days work release with 60 days suspended depending on rap sheet.' The sentencing judge continued the proceeding until a presentence report could be prepared.

At the time of defendant's preliminary appearance and in connection with his request for pretrial release, the trial court inquired regarding any previous convictions. Defendant responded that he had been convicted in Oklahoma in 1966 for unauthorized use of a motor vehicle, but had later been pardoned by the governor. When asked if he had any other convictions he responded in the negative. ¹

On March 19, 1975, while awaiting sentence on his guilty plea, defendant was arrested on a fugitive warrant from the State of California. This prompted him to steal an automobile and flee from custody; he was recaptured and two more charges were filed against him (Cause No. 2050--II), one for attempted escape and the other for grand larceny of a motor vehicle. On April 11, 1975, the Clallam County Prosecutor filed a supplemental information to the original grand larceny charge seeking to have Johnston adjudged a habitual criminal and his punishment enhanced pursuant to RCW 9.95.040. The supplemental information specified a 1969 California aggravated assault conviction and the Oklahoma conviction as the two prior felonies necessary to support the charge. Johnston's motion to withdraw his guilty plea and his motion to dismiss were both denied, and a jury found him to be a habitual criminal. The court, pursuant to RCW 9.92.090, ² sentenced him to life imprisonment on his plea of guilty to the grand larceny charge (Cause No. 2046--II).

Under RCW 9.95.040(3), ³ the effect of the habitual criminal finding was to impose on Johnston a mandatory minimum sentence of 15 years. Defendant was also found guilty of both counts in Cause No. 2050--II, and received sentences of 10 years for escape and 15 years for grand larceny of the automobile, the terms to run concurrently.

On appeal defendant first argues he was denied due process of law and that his plea was obtained by the State in violation of CrR 4.2, because he was not advised that by pleading guilty he was subjecting himself to a possible mandatory minimum sentence of 15 years. Defendant relies on a recent line of cases involving the enhanced penalty provisions of RCW 9.41.025 (committing crimes when armed with a firearm), and RCW 9.95.040(1) (committing crimes when armed with a deadly weapon), which hold 'that a mandatory minimum term is a direct consequence of a guilty plea of which the accused must be informed prior to entering his plea.' Wood v. Morris, 87 Wash.2d 501, 513, 554 P.2d 1032, 1039 (1976); Miller v. Morris, 10 Wash.App. 694, 519 P.2d 1314 (1974); see also Comment Washington Proposed Rules of Criminal Procedure 49 (1971). Stating the same proposition somewhat differently, the court in State v. Cosner, 85 Wash.2d 45, 530 P.2d 317 (1975), held due process of law requires that the accused person be put on notice of the enhanced consequences that will accompany his conviction. See also State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972); State v. Nass, 76 Wash.2d 368, 456 P.2d 347 (1969); State v. Stamm, 16 Wash.App. 603, 559 P.2d 1 (1976); State v. Smith, 11 Wash.App. 216, 521 P.2d 1197 (1974); these decisions mandate that a defendant be given notice, at the time he is charged with certain aggravated offenses, that he faces a mandatory minimum sentence if found guilty.

There is no merit, however, to defendant's contention that the rationale of either line of cases applies equally well to instances in which the defendant is not told his guilty plea might be followed by the filing of habitual criminal proceedings. In State v. Allen, 75 Wash.2d 17, 448 P.2d 332 (1968), each of two defendants had two prior felony convictions at the time he was charged with felony escape, attempted escape and two counts of assault. As promised, and in exchange for pleas of guilty to the one count of escape, the prosecuting attorney dismissed 'all other charges then pending' against each defendant. When, shortly thereafter, the state filed habitual criminal proceedings, both defendants moved to withdraw their pleas, contending they had understood 'no further charges would be filed' against them. Noting defendants were not claiming the prosecuting attorney had specifically promised not to file habitual criminal proceedings, our Supreme Court quickly disposed of both appeals, stating at page 19, 448 P.2d at page 333:

The Petitioner's plea of 'guilty' would not appear to have been coerced or the result of duress, he at all times having had an attorney; his plea of 'guilty' having been made in open Court; he having had an opprtunity, in open Court, to withdrawn said plea and not having done so; and he having received the benefits of such plea, agreements having been acknowledged in open Court, by the dismissal of 3 Other felony charges.

We are not persuaded that either constitutional due process or the subsequent adoption of CrR 4.2(d), ⁴ dictates any change in the result reached in the Allen case. We hold the filing of habitual criminal proceedings is not a 'direct consequence' of the entry of the plea of guilt. Rather, both the habitual criminal proceedings and the results flowing therefrom in the way of maximum and minimum terms of imprisonment are 'collateral' consequences at best. Even if the prosecuting attorney has knowledge of prior convictions he may, in the proper exercise of his discretion, elect not to file such charges. Cf. State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 (1974). On the other hand, should he choose to file them the defendant must be arraigned on a supplemental information and is entitled to a jury trial with his full panoply of rights before the necessary finding of habitual criminal tatus is reached, if ever. State v. Tatum, 61 Wash.2d 576, 379 P.2d 372 (1963). In contradistinction, the mandatory minimum terms of RCW 9.41.025, and RCW 9.95.040(1), and other statutes which prescribe enhanced penalties for certain aggravated offenses, follow immediately upon the heels of a guilty plea to those specific charges and, as such, are a direct and natural consequence of the plea. As noted in State v. Frazier, supra, 81 Wash.2d at page 634, 503 P.2d at page 1077:

In this case we are dealing with a factual determination (RCW 9.41.025) which, if determined adversely to the appellant, irrevocably forbids the court from exercising its independent judgment concerning whether the appellant is to receive a deferred or suspended sentence. The result of an adverse determination is to compel incarceration in the penal institutions for certain fixed minimum periods of time. This determination is all made prior to the imposition of final judgment and sentence.

Although the fact is not dispositive of the issue before us, we note defendant concedes throughout that the prosecuting attorney was not contemplating filing a supplemental information at any time before the plea was accepted. It would appear the decision to do so was triggered by either (1) receipt of defendant's 'rap sheet' showing convictions not only in Oklahoma--where he was revoked on parole rather than pardoned as he had represented to the court--but also in California under the alias of Leroy A. Nash, or (2) issuance of the California fugitive warrant and defendant's escape in a stolen vehicle. These latter offenses, having been committed while defendant awaited sentencing on his guilty plea, would have justified the prosecuting attorney in retreating from his promised recommendation in any event. State v. Yates, 13 Wash.App. 116, 533 P.2d 846 (1975).

As often noted by both this court and our State Supreme Court, CrR 4.2 was modeled after Federal Rule of Criminal Procedure 11, as it read prior to its amendment in 1974. Comment, Washington Proposed Rules of Criminal Procedure, 48 (1971). Federal decisions interpreting Rule 11 are thus looked to for guidance in construing Rule 4.2. Wood v. Morris, su...