State v. Newton
| Decision Date | 29 July 1976 |
| Docket Number | No. 43865,43865 |
| Citation | 552 P.2d 682,87 Wn.2d 363 |
| Parties | The STATE of Washington, Appellant, v. Edwin D. NEWTON, Respondent. |
| Court | Washington Supreme Court |
Robert E. Schillberg, Prosecuting Atty., David G. Metcalf, Deputy Pros. Atty., Everett, for appellant.
Prison Legal Services Project, Robert T. Farrell, Monroe, for respondent.
The state appeals a decision of the Snohomish County Superior Court, on defendant's application for post-conviction relief, ordering defendant's judgment and sentence vacated because defendant's plea of guilty was accepted by the trial court without an admission of guilt and in the face of his protestations of innocence.
The facts are these. On January 16, 1973, defendant Edwin Donald Newton was charged by information in Snohomish County Superior Court with one count of first degree murder (premeditated) for the killing of Robert L. Campbell on or about December 15, 1972, and two counts of second degree assault. The same day defendant, represented by counsel, was arraigned before Judge Daniel Kershner and pleaded not guilty.
April 3, 1973, the state submitted to the court affidavits of four of its witnesses for consideration in a forthcoming hearing upon defendant's application for bail. The affidavit of George Steven Nelson states the following. Defendant told him he had a grudge against Robert Campbell, whom Nelson did not know. On the evening of December 15, 1972, defendant left Nelson's home with a .22 caliber revolver. Later that evening or early the next morning, defendant returned and told Nelson he had killed a person. On December 16, 1972, Nelson and defendant took a drive together to pick up a car, during which time defendant bgan talking about the person killed. At some point in the drive, defendant told Nelson to stop the car and look in a ditch, where Nelson saw a dead adult male. There was a car nearby which defendant then drove back to Arlington, Washington.
The affidavit of Mary Hamlin states she became acquainted with defendant at the end of September 1972. Six weeks later, she states, she heard defendant say he did not like Robert Campbell and that he was going to kill him.
The affidavit of James Tilson states that on December 16, 1972, defendant forced him into a car at gunpoint and drove him to a particular location where they stopped and got out. He saw the dead body of an adult male in a ditch. Defendant threatened Tilson with death if he did not help defendant move the body to another location. Tilson did so. The body was put in the trunk of the car, moved to another location, and dumped out.
The affidavit of Thomas Hart, a deputy sheriff with the Snohomish County Sheriff's Office, states he followed defendant, who was then armed with a .22 caliber pistol, up the stairs in an Arlington, Washington hotel and arrested him. On December 18, 1972, he took a statement from defendant. It states on the evening of December 15, 1972, defendant was with Robert Campbell, and they drove to the location at which both James Tilson and Steven Nelson indicated they had seen a body. Defendant then had in his possession a .22 caliber pistol. He and Campbell had an argument, and Campbell was killed in a struggle over this gun. Defendant stated he did not know exactly how the killing occurred.
The hearing upon defendant's application for bail was held April 5, 1973, in Snohomish County Superior Court before Judge Paul D. Hansen. Defendant was represented by counsel. Bail was denied.
On June 11, 1973, a second amended information was filed, adding the charge of robbery and the alternative of first degree murder while committing robbery. Later that day a third amended information was filed, omitting all charges but murder, which was now reduced to second degree. The same day defendant was arraigned before Judge Hansen on the third amended information. Defendant was represented by counsel. The prosecutor told the court that after discussion among himself, defendant's counsel and defendant, the state agreed to the reduced charge and defendant agreed to plead guilty to the reduced charge. Newton, upon the court's inquiry, confirmed that he and his attorney had discussd the amended information and that he desired to plead guilty.
Defendant then signed a Statement of Defendant on a Plea of Guilty in the presence of his counsel, the deputy prosecuting attorney and Judge Hansen. 1 It states the court has informed him of his right to demand one day in which to answer the arraignment, his right to counsel and his right to trial by jury or to the court. It further states the plea of guilty to second degree murder is entered freely and voluntarily, without promises of leniency or special treatment, and without threat of harm. It states he understands the nature of the charge in the information, and that if he is sentenced to a penal institution, the court may give him a maximum sentence of life imprisonment, with the minimum sentence to be set by the Board of Prison Terms and Paroles. It states he has read the foregoing statement, has received a copy of it, and has no further questions to ask of the court or anyone pertaining to his arraignment. It finally states he pleads guilty to the crime as charged.
A sentence admitting he committed the crime in the manner charged in the information, however, was deleted by defendant before signing. The statement contains no factual account of what occurred or how defendant came to be charged.
The court noted the deletion, and told defendant he would still permit the guilty plea. A presentence report was then ordered by the court, and sentencing scheduled for August 1, 1973. Defendant then made a short statement to the court in which he reiterated his plea of guilty, but stated he was not guilty of second degree murder. The court did not inquire of defendant as to the facts of the case, nor why defendant believed he was innocent.
On August 1, 1973, the presentence report was filed with the court. It states in part that defendant claims to be innocent of second degree murder, but guilty of manslaughter. It says defendant admits killing Campbell. However, it says defendant contends this was after Campbell had too much to drink and attacked him with a knife. This began a fight in which Campbell was accidently shot by defendant's pistol when they were wrestling over it. The report also states an autopsy performed on decedent revealed a .22 caliber bullet hole behind the right ear.
The same day the prosecutor filed a Prosecutor's Statement for Sentencing. It includes a description of the proposed testimony of witnesses for the state, other than the four mentioned above, who would testify that the decedent was afraid of knives and had never been seen with one; the defendant was not drunk the evening of December 15, 1972; and defendant had threatened to kill decedent. It also states no signs of physical struggle were found on Campbell or defendant.
The same day, August 1, 1973, defendant came before Judge Hansen for sentencing. Defendant was represented by counsel. Defendant, after being advised of his basic civil and constitutional rights, reaffirmed his plea of guilty. Judge Hansen then sentenced defendant to life imprisonment. On August 6, 1973, the judge signed the judgment and sentence, with credit for 8 months in county jail.
January 6, 1975, defendant filed with the Court of Appeals an application for post-conviction relief. CrR 7.7. It states as grounds for relief from defendant's conviction and sentence a violation of due process and a denial of the protection of CrR 4.2 in the entry of his guilty plea. It states that although the trial court was aware defendant deleted from his statement on plea of guilty the sentence admitting guilt, the court did not question him about this. In addition, he contends, the court did not have before it at this time any testimony showing defendant guilty of the crime charged or establishing a factual basis for the plea.
March 27, 1975, the Court of Appeals ordered the petition transmitted to the Snohomish County Superior Court for a hearing. July 3, 1975, Judge Thomas McCrea granted the petition on the ground the trial court did not require an admission of guilt when it accepted defendant's plea. The guilty plea, judgment and sentence were ordered vacated. July 7, 1975, the court further ordered petitioner remanded to the custody of the Snohomish County authorities for a new trial on the second degree murder charge or such other or further charges as may be filed against him. The state now seeks review by direct appeal to this court. ROA I--14.
Defendant's contentions center about Judge Hansen's alleged failure to comply with CrR 4.2 in entering judgment and sentence upon the guilty plea. The present CrR 4.2 became effective July 1, 1973, and requires in subsection (d):
The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
Judgment was entered upon defendant's guilty plea on August 6, 1973, and it is therefore necessary to determine if the court did comply with CrR 4.2(d). Specifically, the questions raised are (1) whether the requisite 'factual basis' may be obtained from sources other than defendant, when defendant desired to plead guilty to the second degree murder charged but refused to admit guilt, and (2) if the answer to the first question in yes, whether a sufficient factual basis apart from defendant's admissions was established to satisfy CrR 4.2(d).
The 'factual basis' requirement of CrR 4.2(d) is identical to a provision in the 1966 version of Fed.R.Crim.P. 11. 18 App.U.S.C. p. 4489 (1970). The intent of of the drafters of this provision in CrR 4.2(d) was to copy Fed.R.Crim.P. 11. Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 48--49 (1971). The 1975 amendment to Fed.R.Crim.P. 11 retains the 'factual basis' requirement in substantially the...
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