Taylor, Matter of, 4619-III-2

• Decision Date: 11 February 1982
• Docket Number: No. 4619-III-2,4619-III-2
• Citation: 640 P.2d 737,31 Wn.App. 254
• Parties: In the Matter of the Application for Relief From Personal Restraint of Bruce TAYLOR, Petitioner.
• Court: Washington Court of Appeals

Page 254

31 Wn.App. 254

640 P.2d 737

In the Matter of the Application for Relief From Personal Restraint of Bruce TAYLOR, Petitioner.

No. 4619-III-2.

Court of Appeals of Washington, Division 3, Panel One.

Feb. 11, 1982.

John Henry Browne, Seattle, for petitioner.

John M. Lyden, Pros. Atty., Asotin, for respondent.

McINTURFF, Chief Judge.

Bruce Taylor seeks relief from a life sentence imposed on his plea of guilty to first-degree murder.

According to the report of the presentence investigator, Mr. Taylor was contacted in the spring of 1977 by Jeffrey Boston who asked Mr. Taylor to assist him in finding someone to undertake a contract killing. Mr. Taylor was alleged to have made the necessary contact and payments to the assailant. The presentence report also indicated Mr. Taylor "cased" the victim's residence, drew a map of her home for assailant and purchased firecrackers which were used to cover the sound of gunshots on the date of the murder. The presentence investigator also reported that following the killing, the assailant went to Mr. Taylor's home and gave him the weapon which he and another codefendant later buried. Mr. Taylor also was alleged to have destroyed the weapon at a later date.

The investigator reported that Mr. Taylor's version of the offense was that he was coerced into cooperating in the killing because shortly after his contact with one of the codefendants, he received pictures of his family and a message saying if he did not go along with the plan, some of his family would be killed. According to the presentence investigator, Mr. Taylor said he was forced to be within a few feet of the house at the time of the killing and that he observed one of his codefendants enter the house. Mr. Taylor told the investigator he heard two shots and then saw the codefendant leave. He confirmed the State's version that following the killing, he and his codefendants returned to his house and later buried the assailant's clothing and the weapon.

On July 29, 1977, Mr. Taylor was charged by information with murder in the first degree, and on September 1, 1977, the prosecutor filed his notice of intention to request a proceeding to determine whether the death penalty should be imposed. In an undated memo to the codefendants and their attorneys the prosecutor offered, in exchange for their guilty pleas, to withdraw the charge of aggravated first degree murder and substitute in its place an information charging first degree murder without a request for a jury consideration of the death penalty or mandatory life imprisonment. The prosecutor indicated he would not further reduce the charges and that the offer to Mr. Taylor would be open until March 25, 1978. On March 21, 1978, the prosecutor moved to substitute the information; on March 28 Mr. Taylor entered his plea of guilty, and the prosecutor's motion was granted. It is from that plea Mr. Taylor seeks relief.

Mr. Taylor contends he was denied the effective assistance of counsel and that his plea was not voluntarily, knowingly and intelligently made because prior to and during the entry of his plea he was not adequately informed of: (1) every critical element of the crime for which he was charged; (2) his constitutional right to remain silent; (3) his plea constituted a waiver of all his constitutional rights; (4) that the result of his plea would be the imposition of a mandatory minimum sentence; (5) he was giving up his right to appeal and (6) there was no factual basis for the plea of guilty on the record at the time the plea was entered.

Although we have little doubt about the voluntariness of Mr. Taylor's plea, ¹ we are constrained to grant his petition because the record fails to contain a sufficient factual basis to support Mr. Taylor's plea.

The necessity for the record to contain a factual basis for a guilty plea is as much a constitutional requirement as it is mandated by the applicable guilty plea rule. CrR 4.2(d). ² See In re Keene, 95 Wash.2d 203, 205, 622 P.2d 360 (1980). ³ As the court said in Keene, quoting from McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969), a guilty plea cannot be truly voluntary "unless the defendant possesses an understanding of the law in relation to the facts." In re Keene, supra 95 Wash.2d at 209, 622 P.2d 360. While at one time the necessary factual basis for the plea could be furnished from any reliable source entirely apart from the defendant's admissions, as, for example, a presentence report, see State v. Newton, 87 Wash.2d 363, 370, 552 P.2d 682 (1976), it is now clear that the facts must be developed on the record at the time the plea is taken and may not be deferred until sentencing. See In re Keene, supra 95 Wash.2d at 210, ⁴ 622 P.2d 360. Furthermore, the factual basis requirement is not satisfied unless there is sufficient evidence for a jury to conclude the defendant is guilty even though the court need not be convinced of the defendant's guilt beyond a reasonable doubt. See State v. Newton, supra; State v. Durham, 16 Wash.App. 648, 653, 559 P.2d 567 (1977).

The necessity for the requirement is set out in the following passage from In re Keene, supra, 95 Wash.2d at 209, 622 P.2d 360:

The judge must determine " 'that the conduct which the defendant admits constitutes the offense charged in the indictment or information ...' " Requiring this examination protects a defendant " 'who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.' " McCarthy, (394 U.S.) at 467 (89 S.Ct. at 1171) (quoting Fed.R.Crim.P. 11, Notes of Advisory Committee on Criminal Rules). Under rule 11, the "judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge." Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495 (498), 30 L.Ed.2d 427 (1971).

We have on several occasions discussed the requirement of a sufficient record to support a guilty plea. See In re Teems, 28 Wash.App. 631, 626 P.2d 13 (1981); In re Bryan, 24 Wash.App. 426, 601 P.2d 969 (1979); In re Lundeen, 20 Wash.App. 68, 578 P.2d 552 (1978). ⁵ The constitution aside, the interests of society and the commencement of rehabilitation occurs when a defendant pleads guilty-when there is recognition by him that his conduct has violated society's proscriptions.

The defendant's understanding of the nature of the charges against him is assured by his acknowledgment that he received a copy of the information and that he read and understood it. See In re Keene, supra 95 Wash.2d at 208-09, 622 P.2d 360. Despite an arguably internal inconsistency within Keene, ⁶ a knowledge of the statute the defendant is accused of violating does not satisfy the constitutional requirement that the record contain a factual basis for the plea. If knowledge of the offense coupled with a plea of guilty "as charged in the information" was enough to support a voluntary plea, there would be no necessity for the record to show a factual basis for the guilty plea.

Instead, as the Keene court emphasized, the factual basis requirement helps guarantee a truly knowledgeable and voluntary plea. It protects the admitted misconduct against the backdrop of the violated statute, allowing a thorough and final check on the understanding of the defendant. The societal concern that its laws have been violated and that the defendant before the court is admitting his transgression also is satisfied. The defendant's first step on his journey toward potential rehabilitation-admission of his wrongdoing-has also been taken. Finally, the danger of overturned pleas and prosecutions frustrated by the passage of time and fading witnesses' memories is significantly lessened.

Once again, we note the factual basis may be satisfied by a recitation of facts the prosecutor would prove at trial. Where the prosecutor's factual statement is orally acknowledged by the defendant or where the court orally interrogates the defendant concerning his conduct, the constitutional requirements are satisfied and both society and the defendant are better served. Where, however, the court relies only on the written statement of the defendant on the guilty plea form, it must insure the facts admitted amount to the violation charged. Anything less endangers the finality of the plea.

Applying Keene and the cases and rules upon which it is based, Division Two of our Court in State v. Powell, 29 Wash.App. 163, 627 P.2d 1337 (1981), recently set aside the guilty plea of a defendant charged with first degree murder. There, the only factual basis made on the record at the time the plea was taken was the defendant's statement taken from his statement on plea of guilty pursuant to CrR 4.2. The defendant admitted, "I did participate in the 1 (degree) murder of Charles Allison." The court noted that during the colloquy between the trial judge and the defendant, no attempt was made to orally elicit a description of the defendant's acts or state of mind which resulted in the charge to which he pleaded. In addition, the court found defendant's written statement to be a mere conclusion of law which failed to set forth any of the elements from which a jury could have found him guilty of first degree murder.

Regrettably, the same analysis applies here. The only factual basis on the record to support Mr. Taylor's guilty plea is his...