State v. De Rosia
| Decision Date | 09 November 2004 |
| Docket Number | No. 28467-7-II.,28467-7-II. |
| Citation | 100 P.3d 331,124 Wn. App. 138,124 Wash. App. 138 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. David Eugene DE ROSIA, Appellant. |
Suzan L. Clark, Attorney at Law, Vancouver, WA, for Appellant.
Thomas C. Duffy, Attorney at Law, Vancouver, WA, for Respondent.
David DeRosia appeals his Alford1 plea conviction for second degree felony murder predicated on second degree child assault. He argues that State v. Andress2 compels vacation of his conviction and withdrawal of his plea. The State counters that State v. Majors3 binds DeRosia to his guilty plea, notwithstanding Andress's subsequent change to Washington's felony murder law.
Because DeRosia's Alford plea neither conferred a benefit on him nor recited a factual basis to support a lesser included offense conviction, we hold that (1) Majors does not apply, and (2) Andress compels vacation of DeRosia's conviction and withdrawal of his plea. Accordingly, we reverse and remand without prejudice to the State's refiling any lawful charge, including first degree manslaughter.
L.D.S., a 22-month-old toddler, was left by his mother in David DeRosia's care. When the mother returned, she found that L.D.S. had suffered a severe beating with massive trauma to his head and spine; he died the next day. Doctors determined that L.D.S.'s injuries must have been intentionally inflicted. DeRosia gave contradictory versions about what had happened, but he consistently denied having harmed the child.
On December 4, 2001, DeRosia entered an Alford plea to second degree felony murder predicated on second degree child assault.4 His statement on plea of guilty reads, "Based upon the evidence presented against me, I believe that a judge or jury could find me guilty beyond a reasonable doubt, and I wish to get this matter behind me as quickly as possible." Clerk's Papers (CP) at 20. Although DeRosia's guilty plea statement admits no facts, it does recite the elements of the charged crime, in pertinent part, as follows:
CP at 12-13. DeRosia's guilty plea statement also acknowledged a standard range sentence of 123 to 220 months, with 24 to 48 months community custody, and a potential maximum term of life in prison.
The State offered DeRosia no reduction in charges or penalties and made no promises in exchange for his guilty plea. Rather, DeRosia pled guilty in hopes of seeking leniency from the sentencing court. Having determined that DeRosia was entering his Alford plea voluntarily, knowingly, and intelligently, the trial court accepted the plea and imposed an exceptional sentence of 340 months.
DeRosia appealed the exceptional sentence. The State responded with a motion on the merits.
Thereafter, our Supreme Court issued In Re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), holding that second degree felony murder cannot be predicated on assault under the felony murder statute, RCW 9A.32.050(1)(b), as amended in 1976, the same statute at issue here.5 Our Commissioner denied the State's motion on the merits and requested supplemental briefing on Andress. We ordered additional supplemental briefing on the effect, if any, of State v. Majors, 94 Wash.2d 354, 616 P.2d 1237 (1980), on DeRosia's case and set the case for oral argument before a panel of judges.
Having heard oral argument, we now address the following issues:
I. In pleading guilty, did DeRosia waive his ability to appeal his conviction?
II. If not, does Andress compel vacation of DeRosia's Alford plea conviction for second degree felony murder, predicated on second degree child assault?
III. If not, should we set aside the plea or remand for the trial court to resentence him on the lesser included offense of first degree manslaughter?
By pleading guilty, a defendant generally waives the right to appeal.6 But "a plea of guilty does not preclude an appeal where collateral questions, such as the validity of the statute, the sufficiency of the information, the jurisdiction of the court, or the circumstances under which the plea was made, are raised." Fisher v. Bowman, 57 Wash.2d 535, 536, 358 P.2d 316 (1961).7 If the success of a collateral challenge depends on contesting certain facts to which the defendant stipulated as part of a negotiated plea agreement, however, the collateral challenge may be barred. Majors, 94 Wash.2d at 357-58, 616 P.2d 1237.
DeRosia argues that because he pled guilty to a charge later invalidated by Andress, his appeal falls within an exception to the general rule that he waived the right to appeal his guilty plea conviction. The State counters that, (1) as in Majors, DeRosia "has received the benefits of his plea bargain"; (2) he should be held to his guilty plea because he made it knowingly and voluntarily; and (3) a factual basis supports the plea. We disagree with the State and agree with DeRosia that Andress, not Majors, controls our decision in this case, and DeRosia may appeal.
Majors pleaded guilty to second degree murder and stipulated to his habitual offender status in exchange for the State's reducing the charge from first degree murder and dismissal of other charges. Majors, 94 Wash.2d at 355-56, 616 P.2d 1237. But the felonies that supported his habitual offender status occurred after the murder, rather than before; thus, the stipulated facts did not satisfy the elements for habitual offender status.8 Majors, 94 Wash.2d at 357, 616 P.2d 1237.
Although this legal deficiency was apparent from the face of the charging document, the Supreme Court held that Majors waived his right to challenge the sufficiency of the supplemental habitual-offender information when he bargained away that right in exchange for a less severe minimum sentence; the Court held Majors to his bargain.9Majors thus illustrates the "exception to the exception" to the general rule that a guilty plea precludes appeal.
Nonetheless, Majors does not apply here for several reasons.
First, unlike Majors, the State neither offered DeRosia reduced charges or penalties nor promised him any benefit in exchange for his guilty plea. Unlike Majors, DeRosia pled guilty to second degree felony murder as charged. Unlike Majors, DeRosia received no bargained-for consideration from the State for his guilty plea and his waiver of the right to attack his conviction collaterally. Thus, although DeRosia signed a plea "agreement," it was not a "negotiated plea bargain" in any meaningful sense.10
Second, Majors has generally been limited to circumstances where the factual basis for the guilty plea, typically a non-Alford plea, supports more severe charges.11 Furthermore, Washington courts have distinguished Majors in cases where the State has charged a crime greater than the crime supported by the facts recited in the defendants guilty plea statement.12
In contrast, DeRosia's Alford plea statement provides no factual basis for any crime—not the crime charged, a more severe crime, or even a lesser crime. Rather, the State charged, and DeRosia pleaded guilty to, felony murder predicated on assault, a crime that the Supreme Court subsequently held factually unsupportable and unlawful. Andress, supra.
The amended information charged DeRosia with second degree felony murder, alleging the following elements:
[W]hile committing or attempting to commit the crime of Assault of a Child in the Second Degree, and in the course of and furtherance of said crime or in immediate flight therefrom, [DeRosia] did cause the death of L.D.S. (male, dob: 7/29/99) ... to wit: ... did intentionally assault L.D.S.... and did thereby recklessly inflict substantial bodily harm ... thereby causing the death of L.D.S .... in violation of RCW 9A.32.050(1)(b) and 9A.36.130(1)(a).
CP at 5 (emphasis added).
According to the Supreme Court's Andress decision, the information here misstated the elements of second degree felony murder by impermissibly predicating the murder on an assault. Post-Andress, the State's allegations at most supported first degree manslaughter —a less severe charge. But the record contains no established, admitted, or stipulated facts to support that charge. Instead, the record contains only DeRosia's Alford plea statement that he believed the State's evidence could lead a judge or jury to find him guilty of second degree felony murder as charged, a charge that, according to Andress, is invalid.
Third, the Supreme Court viewed the defective information in Majors as a mere "technical defect" because Majors had plainly been in jeopardy of charges and penalties more severe than those to which he pleaded guilty.13 In contrast, having received no plea bargain, DeRosia was in the same jeopardy both before and after his guilty plea.
That DeRosia was charged, convicted, and sentenced for a more severe offense than the facts could lawfully support, under Andress, is not a mere "technical defect." As the Majors Court suggested, its "benefit of the bargain" analysis does not apply where, as here, "the questions raised are of ...
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