State v. Smith

• Decision Date: 03 October 1985
• Docket Number: No. 51150-1,51150-1
• Citation: 707 P.2d 1306,104 Wn.2d 497
• Parties: STATE of Washington Respondent, v. Charles Duane SMITH, Appellant.
• Court: Washington Supreme Court

Page 497

104 Wn.2d 497

707 P.2d 1306

STATE of WashingtonRespondent, v.Charles Duane SMITH, Appellant.

No. 51150-1.

Supreme Court of Washington En Banc.

Oct. 3, 1985.

Browne, Ressler & Foster, John H. Browne, David R. Wohl, Charles Duane Smith, Seattle, for appellant.

C. Danny Clem, Pros.Atty., Kenneth G. Bell, Deputy Pros.Atty., Port Orchard, for respondent.

CALLOW, Justice.

Charles Duane Smith appeals a jury conviction for two counts of cocaine delivery, and two resulting concurrent life sentences imposed pursuant to the habitual criminal statute, RCW 9.92.090.

On September 17, 1982, the defendant rented room 108 of the Dunes Motel in Bremerton.When it was reported to the police that the defendant had received a large number of visitors and telephone calls, they set up surveillance of the defendant's room.

Shortly after midnight, the police arrested Herbert Latham as he left room 108.Incident to the arrest, the police seized marijuana and two glass vials which contained LSD.In the front seat of Latham's car was a bag which contained cocaine.The bag was wrapped in a brochure for the Dunes Motel.Latham told police that he had received the "acid and coke" in room 108.The seller of the LSD was someone named "Maurio."Latham said that the defendant had given him the cocaine.

Two women left room 108 at about the same time as Latham and drove away in a blue Chevrolet.Police believed that these women had seen Latham being arrested.The Chevrolet returned a few minutes later and the police believed the women had returned to warn the occupants of room 108 of Latham's arrest.The police then, without a warrant, entered room 108 and arrested the defendant, the two women, and several others.All were jailed.One of the women dropped or attempted to hide some cocaine wrapped in a folded piece of paper under the seat of the patrol car in which she was riding.The police later found it.She testified at trial that she had received the cocaine from the defendant.

On September 20, the defendant and the others received a preliminary hearing in superior court pursuant to CrR 3.2A.Following the hearing the defendant was kept in jail because of a parole detainer against him.

On October 14, the State charged the defendant with two counts of delivery of a controlled substance, and one count of sale of a controlled substance.The defendant pleaded not guilty at his arraignment held 4 days later.Trial was set and the defendant subsequently moved to suppress physical evidence seized from room 108.The parties stipulated that the evidence was unconstitutionally obtained and it was suppressed.

At trial, Latham testified that he had received cocaine from the defendant.The woman also acknowledged that she had received from the defendant the paper containing cocaine, but denied knowing that cocaine was in the paper.At the close of the State's case, the judge dismissed the charge of sale of a controlled substance.The jury convicted the defendant of both counts of delivery.

The State thereafter filed a supplemental information which alleged that the defendant was an habitual offender because of the above mentioned conviction and four previous felony convictions: (1) a grand larceny conviction by guilty plea on July 29, 1976; (2) conviction by guilty plea of a count of cocaine possession and one of amphetamine possession on March 16, 1979; (3) a conviction by guilty plea for two counts of a sale of a controlled substance in violation of RCW 69.50.401 on May 3, 1979; and (4) a conviction for cocaine possession by guilty plea on April 27, 1981.Smith waived his right to a jury and went to trial on January 26, 1983.

The State submitted, inter alia, a statement the defendant had signed with his guilty plea to grand larceny.The statement identified a waiver of a number of constitutional rights but contained nothing about a waiver of defendant's right to remain silent.The defendant never objected to the admission of the document or raised the issue of the voluntariness of his plea.The trial judge found the defendant to be a habitual offender pursuant to RCW 9.95.040(3), sentenced him to two concurrent terms of life imprisonment, and assessed a $500 fine and $562.96 in court costs.The defendant appealed and the appeal was transferred here pursuant to RAP 4.3.

The first issue is whether the defendant may challenge for the first time, on appeal, the voluntariness of a guilty plea to a prior conviction used to establish his habitual criminal status.We hold he cannot.

The resolution of the issue requires addressing a question left unanswered by State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845(1980).We must outline the scope of a defendant's constitutional right to challenge the voluntariness of a guilty plea.SeeBoykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969).Boykin held that guilty pleas were unconstitutionally invalid when the defendant had not indicated a clear and intelligent waiver of his constitutional rights.In Holsworth this court extended Boykin to habitual criminal determinations predicated on prior guilty plea convictions that lacked sufficient evidence of waiver.Holsworth recognized that the constitutional deficiencies in a defendant's prior guilty plea remain relevant if the conviction is used to establish habitual criminal status, and stated:

[I]t can be seen that failure to disclose the nature of the offense or consequences of a plea may result in a procedural defect of constitutional magnitude if the defendant's plea as a consequence of that failure is involuntary.As in Burgett, violation of the defendant's constitutional rights is "renewed" through use in a habitual criminal proceeding of an uninformed guilty plea which thus violates due process.

(Italics ours.)Holsworth, 93 Wash.2d at 157, 607 P.2d 845, citingBurgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319(1967).In Burgett, the Court reversed an habitual criminal conviction because the defendant claimed at his habitual criminal hearing that he had not been represented by counsel in a prior guilty plea conviction.

The defendant asks us to extend the constitutional protection of Boykin v. Alabama, supra, beyond the Burgett-Holsworth rationale.The defendants in those cases raised the invalidity of the guilty plea at their habitual criminal hearing.Burgett, 389 U.S. at 111-12, 88 S.Ct. at 259-60;Holsworth, 93 Wash.2d at 151-52, 607 P.2d 845.Smith failed to raise the voluntariness issue below.

The defendant argues that he can raise the involuntariness of his plea initially on the appeal of his habitual criminal conviction because he has been deprived of a constitutional right.He contends that his guilty plea was involuntary because he was not advised of his right to remain silent.He claims, therefore, that he did not knowingly and intelligently waive that right.SeeJohnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461(1938).An invalid waiver would have deprived the defendant of his right to remain silent.Boykin v. Alabama, supra, 395 U.S. at 242-43, 89 S.Ct. 1711, 1712.Burgett v. Texas, supra, andState v. Holsworth, supra, both held that the use in an habitual criminal proceeding of a conviction predicated on an invalid guilty plea "in effect" renews the constitutional violation.Burgett, 389 U.S. at 115, Holsworth, 93 Wash.2d at 154, 607 P.2d 845.Claims of manifest deprivations of constitutional rights may be raised initially on direct appeal.RAP 2.5(a)(3);State v. Kroll, 87 Wash.2d 829, 839, 558[707 P.2d 1311] P.2d 173 (1976).The following decisions have allowed defendants to challenge initially on appeal the voluntariness of a predicate guilty plea conviction.State v. Hudlow, 36 Wash.App. 630, 633, 676 P.2d 553(1984);State v. Gear, 30 Wash.App. 307, 312, 633 P.2d 930(1981);State v. Brown, 29 Wash.App. 770, 775, 630 P.2d 1378(1981);State v. Chervenell, 28 Wash.App. 805, 807, 626 P.2d 530(1981), rev'd on other grounds, 99 Wash.2d 309, 662 P.2d 836(1983).

State v. Holsworth is divided into two segments.The first section discusses the constitutional requirement that guilty pleas be made voluntarily.It elaborates on the need for the protection of constitutional rights whenever a prior conviction pursuant to a plea of guilty is to be admitted in a habitual criminal proceeding.Holsworth93 Wash.2d at 155, 157, 607 P.2d 845.The court expressly stated that it was not reaching the question presented here:

Because we do not consider this application of Boykin principles to be either retroactive or a collateral attack we do not reach or assess the validity of the Court of Appeals holding in State v. Boyd, 21 Wn.App. 465, 586 P.2d 878(1978), that attack, although collateral, would be allowed because the plea defect was of a constitutional nature.

(Italics ours.)Holsworth, 93 Wash.2d at 159, 607 P.2d 845.Thus, although the first section underscored the constitutional importance of valid guilty pleas to support step convictions in recidivist proceedings, the court did not accord the challenge constitutional status.

The second section of the analysis concerned the defendant's and the State's duties when the voluntariness of a prior guilty plea is at issue.The court dismissed the State's arguments that the defendant bore the burden of proof of involuntariness:

[O]nce the issue is raised by the defendant, the State has the burden of proving beyond a reasonable doubt that the defendant, in a prior conviction relied on by the State to prove his habitual criminal status, was apprised of the nature of and consequences of pleading guilty to the offense to which he pleaded guilty.

(Italics ours.)Holsworth, at 160, 607 P.2d 845.Shifting the burden to the prosecution only after the defendant placed voluntariness at issue implies that a challenge to the elements of the charge does not present a constitutional issue.See, e.g., State v. Acosta, 101 Wash.2d 612, 615-19, 683...