In Re the Personal Restraint of Butler
Opinion
Kenneth Ray Butler filed a personal restraint petition seeking relief from convictions of second-degree robbery and second-degree assault entered upon his plea of guilty.
Mr. Butler contends he is being held in violation of his constitutional rights under the double jeopardy clause, and therefore, the charges and his convictions should be dismissed.
*176 He was initially charged with first-degree robbery and first-degree assault. Pursuant to a plea bargain, Mr. Butler pleaded guilty to both charges on August 28, 1978, in exchange for a reduction of the charges from first degree to second degree, and the prosecutor's promise to recommend that the sentences run concurrently and that a presentence investigation be ordered. The plea was accepted, and Mr. Butler was sentenced to 10 years on each count to run concurrently.
Mr. Butler argues that the assault charge was necessarily included in the robbery charge, and, therefore, he was twice placed in jeopardy for the same offense in violation of the federal 1 and state 2 constitutions. See State v. Waldenburg, 9 Wn. App. 529, 513 P.2d 577 (1973). Further, he claims he was denied effective assistance of counsel because his lawyer allowed him to plead guilty to both offenses despite the double jeopardy problem. In support of his petition, Mr. Butler has appended the statement of the prosecuting attorney indicating the assault arose directly out of the robbery of the victim. Mr. Butler contends cases such as State v. Bresolin, 13 Wn. App. 386, 534 P.2d 1394 (1975), and State v. Johnson, 60 Wn.2d 21, 371 P.2d 611 (1962), require the charges be dismissed.
It is clear that the charges of second-degree robbery and second-degree assault merge where, as here, the acts of force necessary to commit the robbery are the same as the acts of force alleged in the count charging second-degree assault. State v. Bresolin, supra; RCW 9A.56.190 3 and *177 RCW 9A.56.210,* ** 4 defining second-degree robbery, and RCW 9A.36.020, 5 defining second-degree assault. See also State v. Cunningham, 23 Wn. App. 826, 860, 598 P.2d 756 (1979). In such a case, the prohibition against double jeopardy prevents the State from charging the defendant with both crimes. In Bresolin, the court did not dismiss both charges; instead, it set aside the assault, conviction holding that it merged into the robbery charge.
Here, the prosecutor concedes it was error to charge Mr. Butler with first-degree assault and first-degree robbery because both charges arose out of the same facts. Notwithstanding, the prosecutor contends that Mr. Butler's petition should be dismissed because his guilty plea was based upon a plea bargain beneficial to Mr. Butler. In essence, the prosecutor's position is that Mr. Butler's complaints about double jeopardy should be deemed waived by the entry of his plea. We disagree.
*178 A defendant's plea of guilty does not waive a claim that the offense is one which the state may not constitutionally prosecute. Menna v. New York, 423 U.S. 61, 46 L. Ed. 2d 195, 96 S. Ct. 241 (1975). See also Launius v. United States, 575 F.2d 770 (9th Cir. 1978). Menna held that although a guilty plea usually results in a waiver of constitutional violations involving factual guilt, such a plea does not waive a claim that the State cannot constitutionally convict the defendant of the particular charge. As the court said:
In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar the claim.
We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.
Menna v. New York, supra at 62-63 n.2. Since Mr. Butler's convictions and sentences on both offenses violate the double jeopardy provision of the state constitution, his petition must be partially granted because the assault merged into the robbery.
Accordingly, the conviction and sentence on the assault count are ordered vacated; the conviction and sentence for robbery are affirmed.
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599 P.2d 1311 (In Re the Personal Restraint of Butler) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.