Opinion
No. 51180-7-I.
Filed: March 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-1-08533-4. Judgment or order under review. Date filed: 09/27/2002. Judge signing: Hon. Carol Schapira.
Counsel for Appellant(s), Timothy Dukes Doc#715503 (Appearing Pro Se), Washington State Reformatory, P.O. Box 777, Monroe, WA 98272-0777.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Pros Office, W 554, 516 3rd Ave, Seattle, WA 98104-2390.
Timothy K. Dukes was convicted of one count of second degree robbery. The trial court sentenced him as a persistent offender based upon a 1994 Washington conviction and a 1992 California conviction. Dukes appeals his sentence, arguing that his prior Washington conviction was facially unconstitutional, his California conviction is not a `most serious offense' under Washington law, and the State was required to prove his persistent offender status to a jury beyond a reasonable doubt. Dukes' Washington conviction was not facially invalid, and the absence of a jury determination did not violate due process. But because the relevant California and Washington statutes differ, we remand to allow the sentencing court to determine whether Dukes' California conduct constituted a `most serious offense' in Washington.
FACTS
In March 2002, Timothy K. Dukes entered a Kentucky Fried Chicken restaurant in Federal Way, told the clerk that he had a gun, and stole approximately $150. Three months later, Dukes confessed to the crime and said he stole the money to support his drug addiction. He also said he did not actually have a gun when he committed the robbery. After a bench trial in July 2002, the trial court convicted Dukes of one count of second degree robbery.
The maximum sentence for second degree robbery is 10 years. But the trial court sentenced Dukes to life imprisonment without the possibility of parole under the Persistent Offender Accountability Act (POAA). The court based the sentence on two of Dukes' previous convictions: a 1992 no contest plea to second degree robbery in California and a 1994 guilty plea to first degree attempted assault in Pierce County. Dukes appeals his sentence, challenging the validity of his prior convictions and the constitutionality of the POAA.
DISCUSSION
Under the POAA, anyone who has been convicted in Washington of a `most serious offense' must be sentenced to life confinement without the possibility of release if he or she has also been convicted of at least two other felonies that are or would be considered most serious offenses in Washington. At sentencing, the State must prove the prior convictions by a preponderance of the evidence, but it need not prove the constitutional validity of the convictions. Dukes' prior convictions of second degree robbery and attempted first degree assault are both most serious offenses in Washington.
Id.; RCW 9.94A.030(32)(a).
State v. Gimarelli, 105 Wn. App. 370, 374, 20 P.3d 430 (citing State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999)), review denied, 144 Wn.2d 1014 (2001).
State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986).
I. Validity of the 1994 Conviction
A defendant generally has no right to contest a prior conviction at a later sentencing. `The defendant has available, more appropriate arenas for the determination of the constitutional validity of a prior conviction[,]' and he `must use established avenues of challenge provided for post-conviction relief.' Therefore, a sentencing court will not consider a prior conviction's validity unless it appears constitutionally invalid on its face. A conviction is facially unconstitutional if it shows infirmities of a constitutional magnitude on its face without further elaboration. We review the judgment and sentence and any plea agreement to make this determination.
Ammons, 105 Wn.2d at 188.
Id.
Id. at 187-88.
Id. at 188.
Gimarelli, 105 Wn. App. at 374-75 (citing Ford, 137 Wn.2d at 480; In re Thompson, 141 Wn.2d 712, 718, 10 P.3d 380 (2000)).
Here, Dukes argues that the plea agreement from his 1994 Pierce County conviction is facially unconstitutional because the judgment and sentence and plea agreement recited that the maximum term for attempted first degree assault is `life' when in fact the maximum term is 10 years. He argues that this error rendered his guilty plea involuntary.
RCW 9A.20.021(1)(b); RCW 9A.28.020(3)(b); RCW 9A.36.011(2). Dukes was ultimately sentenced to 96.75 months.
It is likely that Dukes was originally charged with first degree assault, which has a maximum sentence of life. RCW 9A.20.021(a); RCW 9A.36.011(2). If that charge were pleaded down to attempted assault but the maximum sentence was not changed to reflect that modification, it would explain the error.
When a defendant pleads guilty, he must do so knowingly, voluntarily, and intelligently. Whether a plea satisfies this standard depends primarily on whether the defendant understood its consequences. In State v. McDermond, we focused on three questions that are relevant to determining whether a guilty plea is invalid: (1) was the defendant incompletely or inaccurately advised about the plea's consequences; (2) could the defective advice have materially affected the defendant's decision to plead guilty; and (3) did the defective advice materially affect the defendant's decision to plead guilty.
State v. McDermond, 112 Wn. App. 239, 243, 47 P.3d 600 (2002) (citing Henderson v. Morgan, 426 U.S. 637, 644-45, 96 So. Ct. 2253, 49 L.Ed.2d 108 (1976); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996); In re Barr, 102 Wn.2d 265, 269, 684 P.2d 712 (1984); Wood v. Morris, 87 Wn.2d 501, 507, 554 P.2d 1032 (1976); State v. Aaron, 95 Wn. App. 298, 302, 974 P.2d 1284, review denied, 139 Wn.2d 1002, 989 P.2d 1138 (1999)).
State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001) (citing State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988); State v. Skiggn, 58 Wn. App. 831, 795 P.2d 169 (1990)); McDermond, 112 Wn. App. at 243-48; State v. Paul, 103 Wn. App. 487, 494-95, 12 P.3d 1036 (2000) (citing CrR 4.2(d); State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)).
Here, we can answer the first two questions in the affirmative. But we cannot answer the third question because neither the judgment and sentence nor the plea agreement indicates that the incorrectly stated maximum sentence materially affected Dukes' decision to plead guilty. Because we cannot determine the validity of Dukes' guilty plea from the face of the conviction documents, Dukes must `pursue the usual channels for relief.' Dukes' Pierce County conviction was not unconstitutional on its face.
Ammons, 105 Wn.2d at 189.
Dukes argues that we should not apply McDermond here but instead follow cases like State v. Murphy, which held that when a guilty plea is based on a mutual mistake about the standard sentencing range, it is involuntary and thus is a manifest injustice. But cases like Murphy involve errors in the standard sentencing range, not the maximum sentence. Under Washington's current sentencing scheme, the maximum sentence is much less significant than the standard range because defendants generally serve a term within the standard range, not the maximum. Therefore, cases involving mistakes in the standard range are not analogous to this case.
State v. Murphy, Wn. App., 81 P.3d 122, 122 (2002) (citing Walsh, 143 Wn.2d at 6-9; Miller, 110 Wn.2d at 531-35); see also CrR 4.2(f).
See Murphy, 81 P.3d at 122; Walsh, 143 Wn.2d at 5; Miller, 110 Wn.2d at 529; State v. Moon, 108 Wn. App. 59, 60-61, 29 P.3d 734 (2001).
Further, the cases involving errors in the standard range arose as direct appeals where defendants had unsuccessfully attempted to withdraw their guilty pleas. These were timely challenges that allowed the parties the opportunity to conduct any necessary factual inquiries. Dukes is not asking to withdraw his guilty plea. Instead he is asking the court to remove a strike conviction from his criminal record. McDermond applies under these circumstances, and Dukes must establish that the error materially affected his decision to plead guilty. That Dukes waited almost 10 years to challenge the plea suggests that he was not prejudiced by the error. We see no basis on which to find an injustice under these facts. This is not to say that removing a strike is impossible. Certain errors, such as the absence of counsel or a plea to a nonexistent crime, are facially invalid and may be attacked at this stage of the proceedings. Dukes also argues that even if the conviction was facially constitutional, it was nevertheless invalid because the court failed to comply with Title 10 RCW and CrR 4.2, which require guilty pleas to be voluntary, competent, and with an understanding of the consequences. But, as stated above, at this stage the court may only declare a prior conviction invalid if it is facially unconstitutional. And because it does not meet this standard, Dukes' argument fails.
Murphy, 81 P.3d at 122; Walsh, 143 Wn.2d at 5; Miller, 110 Wn.2d at 529; Moon, 108 Wn. App. at 61.
Dukes also argues that the court failed to comply with Title 13 RCW, but this title involves juvenile proceedings and does not apply here. See RCW 10.01.060 (the methods by which a defendant may be convicted are guilty plea, confession in open court, and jury verdict); CrR 4.2(d) (before accepting a guilty plea, the court must determine that it is made voluntarily, competently, and with an understanding of the charge and the plea's consequences).
II. 1992 California Conviction as Most Serious Offense
Dukes asserts that his 1992 California conviction should not count toward his persistent offender status because it was not a `most serious offense' under Washington law. To determine whether an out-of-state conviction qualifies as a most serious offense for POAA purposes, the court must compare the elements of the foreign criminal statute to the elements of the Washington counterpart. If the out-of-state crime is comparable, the conviction counts toward the offender score as if it were a Washington offense. But if the elements are not identical, or the out-of-state statute is broader than Washington's statute, the court may look at the indictment or information to determine whether the defendant's conduct would have violated the Washington statute. Even if the court considers the defendant's conduct, `the elements of the charged crime must remain the cornerstone of the comparison.'
State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998) (citing State v. Mutch, 87 Wn. App. 433, 437, 942 P.2d 1018 (1997), review denied, 134 Wn.2d 1016 (1998)).
Id.
Id. (citing Mutch, 87 Wn. App. at 437; State v. McCorkle, 88 Wn. App. 485, 495, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999)).
Id.
Dukes pleaded `no contest' to charges of second degree robbery in California. California law defines robbery as `the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' The California statute defines `fear' as either `[t]he fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family,' or `[t]he fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.' Washington law defines robbery as `unlawfully tak[ing] personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.'
Id. at sec. 212 (emphasis added).
RCW 9A.56.190 (emphasis added).
While both statutes require a taking by force or fear, only the Washington statute requires that the force or fear be immediate. The required `force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking[.]' This suggests that the force or fear is immediate only if it takes place before or during the taking, rather than after the taking has been completed. Case law agrees. In State v. Gallaher, this court said that `immediate' means `while the robbery is taking place' and ruled that a robbery jury instruction which includes threats of harm taking place after the robbery is error. California law, on the other hand, does not appear to make this distinction, as its robbery statute includes a definition of fear that does not require immediacy.
Id.
24 Wn. App. 819, 604 P.2d 185 (1979).
Id. at 822 (emphasis added).
Because the Washington and California statutes are not identical, it is necessary to look at the indictment or information to determine whether Dukes' conduct would constitute robbery or some other most serious offense in Washington. But the record contains only the complaint, which states only that Dukes committed robbery `in that said defendant(s) did then and there rob DURAND BRANCH of LAWFUL MONEY OF THE UNITED STATES.' The trial court said, `I don't see anything in these documents that indicates a lack of imminence in that case.' But the court had insufficient information upon which to make that determination. Thus we remand the case so that the trial court may examine whether Dukes' conduct in California constitutes a most serious offense in Washington.
Morley, 134 Wn.2d at 606 (citing Mutch, 87 Wn. App. at 437; McCorkle, 88 Wn. App. at 495).
III. Constitutionality of the POAA
Dukes argues that in order for the POAA's mandatory increase in punishment to be constitutional, the State should have been required to prove to a jury beyond a reasonable doubt his alleged prior convictions, the validity of those convictions, and their status as most serious offenses. But the Washington Supreme Court recently resolved this issue in State v. Smith, which held that a defendant has no federal or state constitutional right to a jury trial in POAA cases. We are bound by this holding and thus reject Dukes' constitutionality claims.
150 Wn.2d 135, 75 P.3d 934 (2003).
We affirm in part and reverse and remand in part.
ELLINGTON and COLEMAN, JJ., concur.