Opinion
Nos. 54971-5-I; 53698-2-I; 52137-3-I.
May 30, 2006.
Petitions for relief from personal restraint. Denied by unpublished opinion per Schindler, A.C.J., concurred in by Baker and Agid, JJ.
Counsel for Petitioner(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Dewayne West (Appearing Pro Se), Washington State Penitentiary, #949722/8-F-7, 1313 N. 13th Ave., Walla Walla, WA 99362.
Counsel for Respondent(s), Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
On January 24, 1989, DeWayne West pleaded guilty to murder in the second degree charged in the alternative as intentional murder and felony murder under former RCW 9A.32.050(1)(a) and (b) (1976), amended by Laws of 2003, ch. 3, sec. 1. After the decision in In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), West filed a personal restraint petition to vacate his second-degree murder conviction. West claims his conviction is contrary to law under Andress and In re Pers. Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), and violates due process. West also collaterally attacks his 2002 conviction for failure to comply with community custody, arguing it is invalid under In re Pers. Restraint of Capello, 106 Wn. App. 576, 24 P.3d 1074 (2001) and In re Pers. Restraint of Stewart, 115 Wn. App. 319, 75 P.3d 521 (2003).
This court in In re Pers. Restraint of Fuamaila, No. 53698-2-I, slip op. (Wash.Ct.App. Mar. 13, 2006), recently considered and rejected the same argument West makes in challenging his conviction for second-degree murder. As we held in Fuamaila, while West's second-degree murder conviction based on the alternative means of felony murder is invalid under Andress and Hinton, those cases do not affect West's second-degree murder conviction based on intentional murder under RCW 9A.32.050(1)(a). West's 1989 judgment and sentence is valid on its face, and his collateral attack is time-barred under RCW 10.73.090(1). In addition, because Capello and Stewart are not material to West's conviction, West's challenge to his conviction for failure to comply with community custody is also time-barred. We deny West's personal restraint petition.
FACTS
The State charged West with second-degree murder in the alternative as intentional murder and felony murder under former RCW 9A.32.050(1)(a) and (b) (1976). The State alleged West intentionally murdered Chester Bailey, Jr. and murdered Bailey while committing assault in the second degree. The information alleged:
See former RCW 9A.32.050 (1976), amended by Laws of 2003, ch. 3, sec. 1.
[T]he defendant Dewayne Eugene West, in King County, Washington, on or about August 6, 1988 with intent to cause the death of another person did cause the death of Chester Bailey, Jr., a human being, who died on or about August 6, 1988; and while committing and attempting to commit the crime of assault in the second degree and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death on or about August 6, 1988 of Chester Bailey, Jr., a human being who was not a participant in the crime.
Contrary to RCW 9A.32.050(1)(a) and (1)(b).
Attachment to State's Supplement Response to Personal Restraint Petition. (State's Supp. Resp. to PRP).
On January 24, 1989, West entered an Alford plea to second-degree murder Sas charged in the information.' The elements for second-degree murder are on page one of the `Statement of Defendant on Plea of Guilty (Alford) Felony.'
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Petitioner's Supp. Brief (Pet. Supp. Brief), Appendix (App.) C at 3.
Pet. Supp. Br., App. C.
[T]he elements of the crime(s) are (1) intentionally causing the death of another person without premeditation, or (2) causing the death of another in the course of and in furtherance of the crime of assault in the second decree (assault with a knife — a deadly weapon) see attached Information.
Id.
In the Statement of Defendant on Plea of Guilty (Alford), West acknowledges he has been given a copy of the information and states that he freely and voluntarily pleads guilty `as charged.' In his own words, West explains why he decided to enter into an Alford plea:
On or about August 6, 1988, in King County, I stuck Chester Bailey with a knife. I did not intend to kill him. However, I am pleading guilty because I believe that there is a substantial likelihood that a judge or jury could convict me at trial and to avoid the possibility of being convicted of murder in the first degree I want to take advantage of the State's offer to plead guilty to murder in the second degree. I have discussed this with my attorney and the court may consider the certification for the determination of probable cause to determine whether a factual basis for this plea exists.
Pet. Supp. Br., App. C at 5-6.
At the plea hearing, West confirmed he had thoroughly reviewed the Statement of Defendant on Plea of Guilty (Alford) with his attorney and understood the elements of second-degree murder. West's attorney also confirmed that West understood the charges and the consequences of his decision to plead guilty.
I have reviewed the police reports thoroughly. I've gone over them with DeWayne. I had an investigator appointed by the Court to contact the State's witness. And it's my opinion that were the matter to go to trial, a jury could actually, there is a substantial likelihood that the jury or a judge would find DeWayne guilty of murder in the second degree, at the very least, under the felony murder theory, which I have discussed with DeWayne. Washington, of course, is the only state in the country, as far as I know, that doesn't recognize the murder doctrine for felony murder. But it's been upheld many times by the courts, so I don't believe that he would have a challenge there. In addition, the State had scheduled a motion to amend the charge today to murder in the first degree. And the range for murder in the first degree for someone with DeWayne's juvenile record would be 261 months to 347 months in prison. And I've gone over that with DeWayne.
And I believe that DeWayne understands what he's doing. He's a very intelligent young man.
Pet. Supp. Br., App. D at 6.
The court determined West's plea was knowing, intelligent, and voluntary and there was strong evidence to support the factual basis to find West guilty of second-degree murder as charged.
I have considered the Affidavit of Probable Cause with his consent, and the statements made here this morning. And I find that the evidence is very strong and certainly sustains a conviction of murder in the second degree beyond any reasonable doubt.
In light of all the strong evidence, the defendant's desire to enter a plea of guilty is reasonable because he has little to gain by going to trial and certain advantages exist if he pleads guilty.
I find the plea of guilty to murder in the second degree to be knowingly, intelligently, competently, and voluntarily made, after consultation with his lawyer. He has been informed of the nature of the charge, the elements thereof, and the consequences of the plea. He understands all those things. And I find that there is a factual basis for the plea. The defendant is guilty of murder in the second degree, as charged.
Report of Proceedings (RP) at 9.
On February 24, 1989, the court imposed a 162-month standard range sentence and one year of community placement to begin `either upon completion of the term of confinement or at such time as the defendant is transferred to community custody in lieu of early release.' The sentencing court also ordered West to comply with several conditions while on community custody, including `[r]eport to and be available for contact with the assigned community corrections officer as directed.' West was released to community custody on January 10, 2001. In January 2002, West stopped reporting to the assigned community corrections officer. The State charged West with failure to comply with community custody in violation of RCW 72.09.310. The State alleged:
Pet. Supp. Br., App. E. See RCW 9.94A.728(2)(b) (permitting inmates convicted of serious violent offenses to be transferred into community custody in lieu of earned early release).
Pet. Supp. Br., App. E.
That the defendant DeWAYNE EUGENE WEST in King County, Washington on or about January 16, 2002, being an inmate in community custody pursuant to RCW 9.94A.030(4), did willfully discontinue making himself available to the Department of Corrections for supervision, by making his whereabouts unknown and by failing to maintain contact with the Department of Corrections as directed by the Community Corrections officer.
Pet. Supp. Br., App. H.
On June 6, 2002, West entered an Alford plea for failure to comply with community custody. In the Statement of Defendant on Plea of Guilty (Alford), West stated:
I am not guilty but am pleading guilty pursuant to North Carolina v. Alford to take advantage of the prosecuting attorney's plea offer. I have reviewed the police reports with my attorney and believe there is a substantial likelihood I would be convicted if I were to go to trial. The court can review the certification for probable cause to determine a factual basis for the plea, and for sentencing.
Pet. Supp. Br., App. G at 10.
The court accepted West's plea as knowing, intelligent, and voluntary and found there was a factual basis to find West guilty of willfully failing to comply with community custody.
After the Washington Supreme Court decided Andress, West filed a personal restraint petition to vacate his second-degree murder conviction. West contends his conviction is not valid under Andress and Hinton. West also contends his conviction for failure to comply with community custody is invalid under Capello and Stewart.
In a subsequent PRP, In re Personal Restraint of West, No. 53555-2-I filed by West, he raised the same argument challenging his community custody conviction. The subsequent PRP was dismissed on February 4, 2005.
ANALYSIS Second-Degree Murder Conviction
RCW 10.73.090(1) bars review of an untimely collateral attack of a judgment and sentence. `No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.' RAP 16.4 incorporates the requirements of RCW 10.73.090.
If a judgment is invalid on its face, there is no time limit to file a personal restraint petition under RCW 10.73.090(1). To obtain relief, West has the burden to show the judgment and sentence is invalid under RCW 10.73.090(1). In re Pers. Restraint of Turay, 150 Wn.2d 71, 82, 74 P.3d 1194 (2003), cert. denied, 544 U.S. 952, 125 S. Ct. 1704, 161 L. Ed. 2d 531 (2005). A judgment and sentence is invalid on its face when `the judgment and sentence evidences the invalidity without further elaboration.' In re Pers. Restraint Hemenway, 147 Wn.2d 529, 532, 55 P.3d 615 (2002). The documents considered as part of a plea agreement can be used to determine the facial validity of the judgment and sentence. Id. at 532-33. West contends his 1989 conviction for second-degree murder is invalid and must be vacated under Andress and Hinton because he only pleaded guilty to second-degree felony murder predicated on assault and did not plead guilty to intentional second-degree murder. There is no dispute that West's personal restraint petition is a collateral attack filed fourteen years after the judgment or that West pleaded guilty to murder in the second degree `as charged' by two alternative means — intentional murder and felony murder predicated on assault under RCW 9A.32.050(1)(a) and (b). There is no constitutional or statutory right to plead guilty to just one alternative means charged. State v. Bowerman, 115 Wn.2d 794, 799, 802 P.2d 116 (1990); State v. Duhaime, 29 Wn. App. 842, 854-55, 631 P.2d 964 (1981). A defendant has the right to plead guilty under court rule. CrR 4.2. But the right to plead guilty under CrR 4.2 is a right to plead guilty to the `one crime charged.' Bowerman, 115 Wn.2d at 799.
There is also no dispute the judgment and sentence was rendered by a court of competent jurisdiction.
In Bowerman, the Supreme Court held:
The statutory right to plead guilty recognized in Martin cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged.
See State v. Martin, 94 Wn.2d 1, 5, 614 P.2d 164 (1980) (holding that CrR 4.2(a) grants a defendant the right to plead guilty).
State v. Bowerman, 115 Wn.2d at 801. (Footnote added).
This court in Fuamaila recently considered the impact of Andress and Hinton on a conviction for second-degree murder charged in the alternative as intentional and felony murder. Relying on Bowerman, we rejected the same argument West makes and held that a defendant has no right to plead guilty to only one alternative means charged. As in Fuamaila, West pleaded guilty `as charged' to intentional murder and felony murder predicated on assault under former RCW 9A.32.050(1)(a) and (b).
State v. Fuamaila, No. 53698-2-I, slip op. at 6 (Wash.Ct.App. Mar. 13, 2006). See also In re Pers. Restraint of Mayer, 128 Wn. App. 694, 703, 117 P.3d 353 (2005) (rejecting the argument that the conviction was not knowing and intelligent because the plea to second-degree intentional murder charged in the alternative was valid).
We conclude that the judgment and sentence based on the alternative means of felony murder under former RCW 9A.32.050(1)(b) is invalid under Andress and Hinton, but the judgment and sentence based on intentional murder in violation of former RCW 9A.32.050(1)(a) is valid on its face. Because the judgment and sentence is valid on its face, within the meaning of RCW 10.73.090(1), unless West can show the decisions in Andress and Hinton are a significant change in the law that is material to his conviction, his collateral attack is time-barred. Turay, 150 Wn.2d at 74.
RCW 10.73.100 lists several exceptions to the one-year time bar for a collateral attack. RCW 10.73.100(6) provides in pertinent part:
The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:
. . .
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
Emphasis added.
For RCW 10.73.100(6) to apply to West's personal restraint petition, the Andress and Hinton decisions must be a significant change in the law material to his second-degree murder conviction.
While the decisions in Andress and Hinton represent a significant change in the law material to West's second-degree murder conviction for felony murder under former RCW 9A.32.050(1)(b), the Andress and Hinton decisions are not material to West's conviction for intentional murder under former RCW 9A.32.050(1)(a). Fuamaila, No. 53698-2-I, slip op. at 10. Therefore, West's collateral attack on his judgment and sentence based on intentional second-degree murder is time-barred under RCW 10.73.090(1).
But because `Andress represented an unexpected change in long standing decisional law,' we address West's substantive arguments under Andress and Hinton and conclude he fails to meet his burden to show either actual or substantial prejudice from alleged constitutional error or nonconstitutional error that inherently results in a `complete miscarriage of justice.' In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004); In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 812-13, 792 P.2d 506 (1990); State v. Ramos, 124 Wn. App. 334, 336, 101 P.3d 872 (2004).
West acknowledges he was charged with committing second-degree murder in the alternative under former RCW 9A.32.050(1)(a) and (b), but claims he only pleaded guilty to felony murder predicated on assault and did not plead guilty to intentional second-degree murder. A constitutionally invalid guilty plea gives rise to actual prejudice. In re Pers. Restraint of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987). Due process requires that a guilty plea be made intelligently, voluntarily and with knowledge that certain rights will be waived. Montoya, 109 Wn.2d at 277. A plea cannot be voluntary `unless the defendant possesses an understanding of the law in relation to the facts.' McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). `[A]n accused must not only be informed of the requisite elements of the crime charged, but also must understand that his conduct satisfies those elements.' In re Pers. Restraint of Hews, 99 Wn.2d 80, 87-88, 660 P.2d 263 (1983).
West focuses exclusively on his written statement in the plea form to support his argument that he only pleaded guilty to felony murder and did not intelligently, voluntarily and with knowingly plead guilty to intentional murder. West's argument ignores the inherent nature of an Alford plea and is not supported by the record.
An Alford plea allows a defendant to plead guilty without admitting guilt, as long as there is a factual basis to conclude he committed the charged crime. North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). In re Hews, 108 Wn.2d 579, 597, 741 P.2d 983 (1987). `[A] defendant may voluntarily, knowingly, and intelligently plead guilty even if he is unable or unwilling to admit that he participated in the acts constituting the crime.' In re Montoya, 109 Wn.2d at 277. The standard for determining whether an Alford plea is valid is whether the plea "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." In re Montoya, 109 Wn.2d at 280 (quoting Alford, 400 U.S. at 31); In re Personal Restraint of Mayer, 128 Wn. App. 694,705, 117 P.3d 353 (2005).
Here, West confirmed in the plea statement that he understood the elements for second-degree murder included `intentionally causing the death of another person.' At the plea hearing, West reiterated that he had gone over the elements of second-degree murder with his attorney and had no questions about the elements. West also knew the State had filed a motion to amend the charges to first-degree murder. In the Alford plea West denies he intended to kill Chester Bailey, but states he decided to plead guilty because there was `a substantial likelihood that a judge or jury could convict [him] at trial and to avoid the possibility of being convicted of murder in the first degree [he] want[ed] to take advantage of the State's offer to plead guilty to murder in the second degree.' West's decision to enter an Alford plea represented a voluntary and intelligent choice among West's alternatives and is valid.
Pet. Supp. Br., App. C at 5-6.
West also argues there is no factual basis to find West guilty of intentional murder. CrR 4.2(d) states `[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.' Under CrR 4.2(d), the judge must determine that the defendant's conduct constitutes the charged offense before accepting a plea. In re Pers. Restraint of Crabtree, 141 Wn.2d 577, 585, 9 P.3d 814 (2000). A factual basis exists if there is sufficient evidence from which a jury could conclude the defendant is guilty. State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976). The factual basis `may come from any source the trial court finds reliable, and not just the admissions of the defendant,' Newton, 87 Wn.2d at 370, `so long as the material relied upon by the trial court is made a part of the record.' State v. Osborne, 102 Wn.2d 87, 96, 684 P.2d 683 (1984); accord In re Pers. Restraint of Keene, 95 Wn.2d 203, 210 n. 2, 622 P.2d 360 (1980); State v. Arnold, 81 Wn. App. 379, 914 P.2d 762 (1996).
`A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.' RCW 9A.08.010(1)(a). Intent may be inferred `from a defendant's conduct where it is plainly indicated as a matter of logical probability.' Myers, 133 Wn.2d 26, 38, 941 P.2d 1101 (1997).
West's reliance on State v. Bunting, 115 Wn. App. 135, 61 P.3d 375 (2003) is misplaced. In Bunting, the court addressed the comparability of foreign crimes for sentencing purposes and not the factual basis for a guilty plea under CrR 4.2. Id. at 140.
As part of his Alford plea, West agreed the court could `consider the certification for the determination of probable cause to determine whether a factual basis for this plea exists.' According to the certification, while Chester Bailey, Jr. and his sister, Tina Michelle McLemore, were waiting at a bus stop in downtown Seattle, West and four of his companions started harassing McLemore. Bailey told West to leave McLemore alone and stepped in between West and McLemore, pushing West away. West walked around the corner of a building, but immediately returned and stabbed Bailey in the neck, severing his jugular vein. West pulled out the knife, looked at it, and said, "I'm out of here." One of West's companions said, "Yeah, yeah, yeah, you don't fuck with the B.G.D. (referring to a gang known as the `Black Gangsters Disciples').' There is sufficient evidence for a jury to conclude West intentionally murdered Bailey.
Pet. Supp. Br., App. C at 5-6.
Attachment to State's Supp. Resp. to PRP.
Attachment to State's Supp. Resp. to PRP.
Failure to Comply with Community Custody Conviction
Relying on Capello and Stewart, West claims his conviction for violating community custody is invalid because DOC had no authority to require him to obtain a pre-approved residence or living arrangement. See In re Pers. Restraint of Capello, 106 Wn. App. 576, 24 P.3d 1074 (2001); In re Pers. Restraint of Stewart, 115 Wn. App. 319, 75 P.3d 521 (2003). But DOC did not require West to obtain a pre-approved residence and living arrangement before he was transferred into community custody. West was released into community custody on January 10, 2001, his adjusted earned early release date. In 2002, approximately a year after his release to community custody, West violated the terms of community custody. West did not maintain contact with the assigned community corrections officer and was not available for supervision, resulting in his conviction for violating community custody.
Because Capello and Stewart are not material to West's community custody conviction, West's collateral attack on his community custody violation is time-barred under RCW 10.73.090(1).
Pro se, West contends that he is entitled to relief because he had already completed his sentence when the State filed charges against him for violating community custody. West is mistaken. Inmates convicted of serious violent offenses may be transferred into community custody in lieu of earned early release. RCW 9.94A.728(2)(b). In lieu of his earned early release credit, West still had to serve the remainder of his 162-month sentence in community custody. When West was transferred to community custody, he had served less than 144 months of his 162-month sentence.
CONCLUSION
West's collateral attack on his 1994 conviction for second-degree intentional murder is time-barred under RCW 10.73.090(1). Andress and Hinton are not material to West's conviction because he pleaded guilty to second-degree murder based on the alternative theory of intentional murder. Even if his personal restraint petition was not time-barred, West has not demonstrated by a preponderance of the evidence either nonconstitutional error that constitutes a fundamental defect resulting in the miscarriage of justice or constitutional error that was actual or substantial. We also conclude that West's collateral attack on his community custody conviction is time-barred. We deny West's personal restraint petition.
AGID and BAKER, JJ., concur.