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applying a criminal harassment statute that required that the defendant "by words or conduct place[d] the person threatened in reasonable fear that the threat will be carried out," and holding that there was an insufficient factual basis for the defendant's guilty plea because under the statute "there must be some evidence establishing actual fear of injury" but nothing "support[ed] a reasonable inference that [the complainant] actually feared that [the defendant] would harm her in any way."
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Nos. 38231-8-II, Consolidated with 38938-0-II.
September 15, 2009.
Appeal from the Superior Court, Pierce County, No. 08-1-02447-6, Ronald E. Culpepper, J., entered August 19, 2008, together with a petition for relief from personal restraint.
Judgment reversed, petition dismissed, and case remanded by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Penoyar, J.
Michael Chiofar appeals his guilty plea conviction for misdemeanor harassment. He argues that his guilty plea was not knowing, intelligent, and voluntary because it lacked a factual basis. We agree. We vacate Chiofar's conviction and remand to the trial court.
FACTS
The State's declaration for determination of probable cause alleged the following facts: On April 7, 2008, sheriff's deputies contacted a judicial assistant for a Pierce County Superior Court judge, Sandi Rutten, who, had recorded numerous voicemails from Michael Chiofar for several weeks. The most recent voicemail referenced Chiofar's frustrations with courts and administrative agencies and told Rutten that if she did not help him, "All hell will break loose, you'll see something that will make Virginia Tech look like a pea shooter when I get through. And I do mean that, you know. When I go I'm gonna go big Sandi, really big and I'm talking multi-thousands." Clerk's Papers (CP) at 2. This probable cause determination said nothing about whether these threats engendered any fear in Rutten.
The State initially charged Chiofar with felony harassment but subsequently amended the information to misdemeanor harassment. Explaining the reduced charge, the deputy prosecutor wrote, "The victim in this case has reported that she was not placed in reasonable fear that the threat in this case would be carried out, therefore, the State would face difficulty in proving all elements of the original charge beyond a reasonable doubt." CP at 51.
Following a determination of competency, Chiofar entered an Alford plea, stipulating to the facts contained in the declaration for determination of probable cause and stating that he had reviewed the evidence and believed there was a substantial likelihood of conviction if he went to trial. There was no discussion of the evidence at the plea hearing. Based on the probable cause declaration and Chiofar's stipulation, the superior court found the facts sufficient to support the guilty plea, noting that Chiofar "made some statements that could very reasonably be taken as threats, although he later said he didn't make any threats." Report of Proceedings (RP) (Aug. 19, 2008) at 10. But the superior court said nothing about whether the threats actually engendered fear in Rutten. RP (Aug. 19, 2008) at 9-10.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
Both the State and Chiofar recommended a 365-day confinement sentence, with 277 days suspended and credit for 88 days served. Chiofar told the court that he was pleading guilty because he wanted to get out of jail that same day. The court entered a finding of guilty and imposed the recommended sentence.
Twenty-four days after the superior court filed the judgment and sentence, Chiofar filed a document entitled `NOTICE OF APPEAL and/or MOTION FOR RECONSIDERATION(s)," which we treated as a notice of appeal. Chiofar also filed a personal restraint petition, which we consolidated with his direct appeal. Because we vacate Chiofar's conviction based on his counsel's arguments on his direct appeal, we do not address additional issues Chiofar raises in his statement of additional grounds on direct appeal and in his personal restraint petition.
ANALYSIS
Chiofar's primary argument is that his guilty plea lacked a sufficient factual basis. The State counters that we should not consider this argument because he failed to challenge the adequacy of the factual basis below and, therefore, has not preserved this challenge for appeal. The State is correct that we generally do not review issues for the first time on appeal unless they relate to a manifest error affecting a constitutional right, RAP 2.5(a)(3), and there is no constitutional requirement for a factual basis to support a plea. Nevertheless, CrR 4.2(d) requires a factual basis for any guilty plea, and this court rule requirement has constitutional implications. Thus, we address the merits of Chiofar's challenge to the factual basis supporting his plea.
Constitutional due process requires that a defendant's guilty plea must be knowing, intelligent, and voluntary. State v. Codiga, 162 Wn.2d 912, 922, 175 P.3d 1082 (2008). In order for a plea to be voluntary, the defendant must know the elements of the offense and understand how his conduct satisfies those elements. State v. R.L.D., 132 Wn. App. 699, 705, 133 P.3d 505 (2006); see also In re Personal Restraint of Keene, 95 Wn.2d 203, 209, 622 P.2d 360 (1980). An inadequate factual basis may affect this understanding. In re Personal Restraint of Clements, 125 Wn. App. 634, 645, 106 P.3d 244, review denied, 154 Wn.2d 1020 (2005). Thus, the requirement of a factual basis to support the plea is constitutionally significant insofar as it is related to the voluntariness of Chiofar's plea. See In re Personal Restraint of Hews, 108 Wn.2d 579, 592, 741 P.2d 983 (1987).
A factual basis sufficient to support a guilty plea exists if there is sufficient evidence for a jury to conclude that the defendant is guilty. State v. Amos, 147 Wn. App. 217, 228, 195 P.3d 564 (2008). In determining factual basis, the court may rely on any reliable source as long as it is in the record. Amos, 147 Wn. App. at 228. An element of criminal harassment, whether felony or misdemeanor, is that "the person threatened [be] in reasonable fear that the threat will be carried out." RCW 9A.46.020(1)(b); State v. C.G., 150 Wn.2d 604, 609, 80 P.3d 594 (2003). The State must show not only that a fear caused by the threat would be reasonable, but also that the person threatened actually felt subjective fear. State v. E.J.Y., 113 Wn. App. 940, 953, 55 P.3d 673 (2002). There is no such evidence in this record.
On the contrary, the prosecutor's written statement explaining the amended information's reducing the charge from felony to misdemeanor harassment expressly said that Rutten was not afraid that Chiofar would carry out his threat. On appeal, the State seeks to limit the effect of the prosecutor's statement, arguing that it applied only to the threat of death, not to the threat of bodily injury. Although a literal threat to kill could engender only a fear of bodily injury, supporting a misdemeanor charge, there must be some evidence establishing actual fear of injury. Here, however, nothing in the prosecutor's statement supports a reasonable inference that Rutten actually feared that Chiofar would harm her in any way. And, contrary to the State's argument, nothing in that statement limits Rutten's lack of fear to Chiofar's death threats. Chiofar entered an Alford plea and did not state his version of the facts supporting his plea. Nor did the State's probable cause declaration even assert that Chiofar's threats made Rutten fearful that he would carry them out. Furthermore, the prosecutor's explanation of the reduced charge was the only evidence before the superior court on the issue of Rutten's fear, and this explanation noted only Rutten's lack of fear.
The court may consider the factual statement of the prosecutor for the purposes of determining whether a factual basis exists, as long as the statement is on the record at the time the plea was taken. See State v. Osborne, 102 Wn.2d 87, 95-96, 684 P.2d 683 (1984).
See C.G., 150 Wn.2d at 611.
We note that although the superior court found that such fear would be reasonable, it neither pointed to the record for support nor found that Rutten actually had such fear.
We hold, therefore, that this factual basis was insufficient to support Chiofar's guilty plea to misdemeanor harassment, which includes the element of the victim's fear that the defendant will actually carry out the threat. Based on the insufficient evidence before the superior court accepting Chiofar's guilty plea, Chiofar's stated belief that conviction was likely if he went to trial shows a misunderstanding of the law. Therefore, his plea was not voluntary. Accordingly, we vacate his conviction and remand to the superior court, which shall allow Chiofar to withdraw his guilty plea.
In his statement on plea of guilty, Chiofar asserted that he had reviewed the evidence and believed there was a substantial likelihood of conviction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and PENOYAR, J., Concur.