State v. Swindell
| Decision Date | 06 March 1980 |
| Docket Number | No. 46234,46234 |
| Citation | 93 Wn.2d 192,607 P.2d 852 |
| Parties | STATE of Washington, Appellant, v. Jimmie L. SWINDELL, Respondent. |
| Court | Washington Supreme Court |
Norman Maleng, Pros. Atty., J. Robin Hunt, Julia I. Baute, Deputy Pros. Attys., Seattle, for appellant.
Seattle-King County Public Defender, Lewis H. Nomura, Seattle, for respondent.
Defendant Jimmie L. Swindell was convicted on a charge of carrying a concealed weapon, a pistol, in violation of Seattle Municipal Ordinance 12A.17.140. He was subsequently charged by information with violation of RCW 9.41.040 1 which prohibits one from owning, possessing or having a pistol under his control if he has previously been convicted of a "crime of violence". It was alleged that in April of 1969 defendant had been convicted of second degree assault a "crime of violence". 2
Defendant moved to dismiss the information asserting the charge violated the prohibition against double jeopardy. He also challenged use of the 1969 assault conviction contending the underlying guilty plea was made involuntarily. Both motions were denied and he was convicted. Defendant appealed and, by less than a unanimous decision, the Court of Appeals rejected the double jeopardy challenge. It concluded, however, that defendant's guilty plea was involuntary and reversed the trial court on that issue. We accepted review pursuant to RCW 2.06.030(e) and affirm the Court of Appeals.
Defendant contends his conviction under RCW 9.41.040, following the misdemeanor conviction for carrying a concealed weapon, violates the prohibition against double jeopardy. U.S.Const. amend. 4; Const. art. 1, § 9. We do not agree. In State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973) we held the multiple prosecution of one for carrying a concealed weapon and for violating RCW 9.41.040 does not constitute the "same offense" as contemplated by the double jeopardy clause of either the federal or state constitution. We said at pages 582-83, 512 P.2d at page 721:
(D)efendant argues that the possession of a pistol is the gravamen of both offenses. This contention overlooks the fact that mere possession of a pistol alone is insufficient to convict under either the ordinance or the statute; each offense contains an additional element not included in the other. Under the city ordinance concealment of the weapon must be proven, but concealment is not a requisite element of RCW 9.41.040. The state statute additionally requires evidence that the defendant has been convicted of a crime of violence, whereas such evidence is irrelevant to a violation of Pasco Municipal Code 9.24.010. Thus the required evidence under either charge would be insufficient to convict under the other.
Likewise the municipal charge of concealing a weapon is not a lesser included offense in the state charge.
. . . The element of concealment is not an essential ingredient of the state charge and the defendant could have committed the greater offense without committing the lesser.
Defendant argues that recent decisions, particularly Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), call into question the continuing vitality of Roybal. Defendant's reliance on Brown is misplaced, however. In Brown, the Supreme Court reaffirmed the double jeopardy test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). That test is indistinguishable from the "elements of the crimes" test established in Roybal. Defendant's double jeopardy challenge is without merit.
Defendant contends the guilty plea underlying his 1969 assault conviction in Spokane County Superior Court was made involuntarily. Thus, he contends, it cannot be used to support a conviction under RCW 9.41.040. The State argues that defendant cannot challenge the 1969 conviction, having failed to do so either by direct appeal or by a petition for post-conviction relief, citing State v. Murdock, 18 Wash.App. 294, 567 P.2d 267 (1977), rev'd on other grounds, 91 Wash.2d 336, 588 P.2d 1143 (1979); and State v. Petersen, 16 Wash.App. 77, 553 P.2d 1110 (1976). But see State v. Boyd, 21 Wash.App. 465, 586 P.2d 878 (1978). The challenge raises two questions: first, on a charge alleging violation of RCW 9.41.040, can a defendant challenge the present use of a prior conviction of a "crime of violence" on the basis that the underlying guilty plea was allegedly made involuntarily? Second, if such a challenge is permissible, who has the burden of proving the constitutional validity or invalidity of the guilty plea?
Initially we note defendant's challenge to the constitutional validity of his prior conviction for a "crime of violence" is not an attempt to invalidate the previous judgment, as would be the case in a direct appeal or a personal restraint petition. Rather, defendant seeks to foreclose the prior conviction's present use to establish an essential element of RCW 9.41.040, i. e., a constitutionally valid conviction for a "crime of violence". Defendant's challenge is thus indistinguishable from State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980).
In Holsworth, we held that in an habitual criminal proceeding a defendant could challenge the present use of prior convictions based on guilty pleas which allegedly did not meet the criteria of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and prior decisions of this court. We adhere to Holsworth and hold that Swindell may challenge the use of a constitutionally invalid guilty plea presently employed to support the State's allegation of a previous "crime of violence" conviction.
In Holsworth, we also held that once a defendant charged under RCW 9.92.090 calls attention to the alleged unconstitutionality of a prior felony conviction used by the State to support an habitual criminal charge, the State must thereafter prove beyond a reasonable doubt that the prior conviction was constitutionally valid. The considerations determinative of one's right to challenge prior guilty pleas in the habitual criminal context are also present in the instant case. The existence of a constitutionally valid conviction for a "crime of violence" is an element the State must prove beyond a reasonable doubt under RCW 9.41.040. Pettus v. Cranor, 41 Wash.2d 567, 250 P.2d 542 (1952); State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939). Accordingly, we hold that once a defendant calls attention to the alleged unconstitutionality of a plea of guilty to a prior "crime of violence" sought to be used by the State to support a charge under RCW 9.41.040, the State must prove beyond a reasonable doubt, that the plea was made voluntarily.
Having concluded that defendant may challenge the present use of his 1969 guilty plea, we now address the contention that his plea was the product of improper prosecutorial coercion, and thus involuntary. During a motion in limine, defendant related the circumstances surrounding the 1969 plea. Significantly, the State made no attempt to rebut the substance of defendant's testimony. Indeed, with minor exceptions, the State accepted defendant's statement of the facts. Consequently, defendant's testimony and the verbatim transcript of the guilty plea constitute the entire record of the events in 1969.
Defendant asserts that in 1969 he was represented by a lawyer whom he saw only once prior to his plea. Initially he entered a plea of not guilty and was prepared to go to trial on the second degree assault charge. Defendant states that immediately before his scheduled court appearance he was taken from jail to the prosecutor's office. His lawyer was not informed of this impromptu meeting and thus was not present. Further, there is no evidence defendant was informed of his right to have counsel present at this meeting. The prosecuting attorney apparently told defendant that unless he pleaded guilty to second degree assault, he would move to amend the information from second degree assault to first degree assault while armed with a deadly weapon. Thereafter, the defendant went directly to the courtroom, where he joined his lawyer who was then prepared to proceed to trial. Defendant did not tell his attorney of the discussion. Prior to the trial he withdrew his former plea of not guilty and pleaded guilty to second degree assault.
A guilty plea induced by a prosecutorial threat to file increased charges or a promise to refrain from filing additional charges does not necessarily vitiate an otherwise voluntary plea. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Watkins v. Solem...
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