State v. Williams

• Decision Date: 09 November 1981
• Docket Number: No. 7054-1-I,7054-1-I
• Citation: 30 Wn.App. 558,636 P.2d 498
• Parties: STATE of Washington, Respondent, v. Kevin Lee WILLIAMS, Appellant. Petition of Kevin Lee WILLIAMS. STATE of Washington, Respondent, v. John Frederick MORRISON, Appellant. Petition of John Frederick MORRISON. STATE of Washington, Respondent, v. Albert Clark LOWE, Appellant. Petition of Albert Clark LOWE.
• Court: Washington Court of Appeals

Page 558

30 Wn.App. 558

636 P.2d 498

STATE of Washington, Respondent, v. Kevin Lee WILLIAMS, Appellant.

Petition of Kevin Lee WILLIAMS.

STATE of Washington, Respondent, v. John Frederick MORRISON, Appellant.

Petition of John Frederick MORRISON.

STATE of Washington, Respondent, v. Albert Clark LOWE, Appellant.

Petition of Albert Clark LOWE.

No. 7054-1-I.

Court of Appeals of Washington, Division 1.

Nov. 9, 1981.

Rehearing Denied Dec. 16, 1981.

Review Granted Feb. 19, 1982.

[636 P.2d 499] John Ziegler, Walla Walla (appointed), for appellants.

Norman K. Maleng, King County Pros. Atty., Carol Hepburn, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

These consolidated cases present the question whether State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980), and State v. Swindell, 93 Wash.2d 192, 607 P.2d 852 (1980), permit a challenge for the first time on appeal to the use of prior felony convictions based upon allegedly invalid guilty pleas in habitual criminal and felon in possession of a firearm trials. Appellants Williams and Morrison were found to be habitual criminals under RCW 9.92.090. Appellant Lowe was found to be a previously convicted felon in possession of a firearm in violation of the Uniform Firearms Act, RCW 9.41.040. All three appellants have filed personal restraint petitions in addition to their direct appeals. None of the appellants questioned the validity of the prior guilty pleas in the proceedings below.

The facts of the separate cases are as follows: Kevin Williams was found guilty by a jury of second degree burglary and first degree possession of stolen property. Following the verdict, a supplemental information was filed charging him with being a habitual criminal. The prior convictions alleged in the supplemental information resulted from guilty pleas entered by Williams in 1973 to burglary and in 1974 to assault. At the habitual criminal trial, Williams' counsel did not object to the constitutional validity of the prior felony convictions. On September 14, 1978, Williams was found to be a habitual criminal.

Williams filed a notice of appeal on November 2, 1978, and on September 22, 1980, he filed a personal restraint petition which alleged that his counsel had examined the written statements executed by Williams at the time of pleading guilty and discovered that the statements did not advise Williams that he had a privilege against self-incrimination, a right to a unanimous jury trial, and that John Morrison was convicted by the court on June 5, 1979, of second degree assault while armed with a deadly weapon. A supplemental information was filed charging Morrison with being a habitual criminal. Two of the three prior felonies alleged were controlled substances violations to which Morrison had pleaded guilty in 1974 and 1977. The constitutional validity of these pleas was not challenged at the habitual criminal trial. Like Williams, Morrison appealed from the habitual criminal findings and also filed a personal restraint petition alleging that the prior pleas were invalid. His petition alleged that the written statements he executed did not inform him of his privilege against self-incrimination and right to jury trial, nor of the elements of the crime.

the plea of guilty necessarily waived constitutional trial rights. The petition also alleged that Williams was not aware of the elements of the crime to which he pleaded, including the mental state, nor of his right to challenge the validity of the prior conviction.

Albert Lowe was convicted of second degree assault while armed with a deadly weapon and of violation of the Uniform Firearms Act. The charges arose out of a dispute over loud music emanating from a south Seattle apartment. The victim testified that he was shot by Lowe in the leg, whereas Lowe's version was that he was leaving the scene of the argument when he heard a shot fired by some third person.

Lowe filed a notice of appeal on October 17, 1979, and he filed a subsequent personal restraint petition contending that his conviction for robbery in 1974, which was the underlying felony for purposes of his being a previously convicted felon in possession of a deadly weapon, was based on a constitutionally invalid guilty plea. His claim was that he was not advised of the elements of the charge nor of the rights waived by pleading guilty. He also contends that the invalid robbery conviction was improperly used to impeach him at his assault trial. The constitutional validity of the robbery conviction was not questioned below.

By commissioner's rulings, the personal restraint petitions and appeals of all three appellants were consolidated. While these appeals were pending, the Supreme Court's decisions in Holsworth and Swindell were announced.

THE DIRECT APPEALS

In State v. Holsworth, supra, the Supreme Court permitted a challenge to what it termed the present use of an allegedly invalid prior guilty plea in a habitual criminal proceeding. Although the court held that it is the State's burden to prove the validity of the prior conviction, it made clear that the defendant must initially raise the issue:

Of course, the defendant must first call attention to the inappropriateness of using a pre-Boykin plea. But once the defendant raises the issue, the State must bear the burden of proving that the pre-Boykin conviction is based on a knowing guilty plea entered after disclosure of the nature and consequences of the offense, and is thus usable in the habitual criminal proceeding.

(Emphasis ours.) Holsworth at 159, 607 P.2d 845.

State v. Swindell, supra, was an extension of the Holsworth holding to a felon in possession of a weapon prosecution under RCW 9.41.040. The court reiterated that

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 a habitual criminal charge, the State must thereafter prove beyond a reasonable doubt that the prior conviction was constitutionally valid.

(Emphasis ours.) Swindell at 196, 607 P.2d 852.

Despite the clear language in both Holsworth and Swindell which requires a defendant to raise initially the issue of the present use of allegedly invalid prior guilty pleas, appellants argue they may raise the issue for the first time on appeal. They rely on language appearing in both opinions which tends to suggest that the validity of the prior pleas is an element which the State must prove beyond a reasonable doubt, thus raising a constitutional issue. The In order to preserve error for consideration on appeal, the general rule is that the alleged error must be called to the trial court's attention at a time that will afford the court an opportunity to correct it. State v. Wiley, 26 Wash.App. 422, 613 P.2d 549 (1980). As our Supreme Court has stated,

State, on the other hand, argues that the validity of the prior guilty pleas may not be raised for the first time on appeal. The State's position is that no error appears on the records before us because of appellants' failure to raise the issue in the proceedings below. We agree with the State's contentions.

Under most circumstances, we are simply unwilling to permit a defendant to go to trial before a trier of fact acceptable to him, speculate on the outcome and after receiving an adverse result, claim error for the first time on appeal which, assuming it exists, could have been cured or otherwise ameliorated by the trial court.

State v. Wicke, 91 Wash.2d 638, 642-43, 591 P.2d 452 (1979).

Appellants rely on the exception to the general rule which permits constitutional issues to be raised for the first time on appeal. We agree that a constitutional issue is involved here only in the sense that had the appellants properly called attention to the inappropriateness of using the prior pleas, the inquiry at trial would have been whether the State's evidence demonstrated that the prior pleas were valid by constitutional standards. However, to acknowledge that a constitutional issue lurks somewhere beneath the surface does not ipso facto permit these appellants to raise an issue which properly should have been raised at trial. ¹

Both Holsworth and Swindell appear to require the State (W)e do not believe that the import of the holding in Swindell is that the constitutional validity of a guilty plea is an "element" of the offenses such as first degree escape. But a prior felony conviction is an element. A prior conviction "is a fact which it is necessary for the state to allege and prove to obtain a conviction ..." Pettus v. Cranor, 41 Wash.2d 567, 568, 250 P.2d 542 (1952). Accord, State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939).

to prove the existence of a constitutionally valid conviction as an element under the habitual criminal and felon in possession of a weapon statute. State v. Holsworth, supra, 93 Wash.2d at 159, 607 P.2d 845; State v. Swindell, supra 93 Wash.2d at 196-97, 607 P.2d 852. However, we recently examined this question in State v. Brown, 29 Wash.App. 1, 627 P.2d 142 (1981). Addressing specifically the State's burden in a prosecution under RCW 9.41.040, we stated:

State v. Brown, supra at 5, 627 P.2d 142.

The same analysis applies in the habitual criminal setting:

In order to establish the status of an accused as an habitual criminal, it is necessary for the state to prove: (1) the prior judgments of convictions; (2) that the person named therein is the same person on trial.

State v. Kelly, 52 Wash.2d 676, 678, 328 P.2d 362 (1958). The fact that Holsworth and Swindell require the defendant to raise the issue illustrates, we think, that the validity of the prior guilty pleas is not, strictly speaking, an element which the State must prove. Absent a challenge by appellants to the validity of the underlying pleas, there was no error in these cases in proving the prior convictions by introduction of certified judgments and sentence....