In Re the Personal Restraint of Hilyard

695 P.2d 596, 39 Wash. App. 723, 1985 Wash. App. LEXIS 2261
CourtCourt of Appeals of Washington
DecidedFebruary 1, 1985
Docket7761-2-II
StatusPublished
Cited by11 cases

This text of 695 P.2d 596 (In Re the Personal Restraint of Hilyard) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Personal Restraint of Hilyard, 695 P.2d 596, 39 Wash. App. 723, 1985 Wash. App. LEXIS 2261 (Wash. Ct. App. 1985).

Opinions

Worswick, C.J.

— Lorenzo Hilyard has filed a personal restraint petition in which he seeks the vacation of his guilty plea to second degree assault. He contends (1) that he was unaware of the elements of the crime, (2) that a factual basis was not established for the plea, (3) that the court "coerced" him into pleading guilty by agreeing to run his state sentence concurrent with his federal parole revocation, and (4) that he was denied effective assistance of counsel. The third and fourth contentions are patently frivolous and do not warrant discussion. The two others deserve more attention but are also without merit. We deny the petition.

Petitioner was charged with first degree robbery in September 1982. The information was amended to a charge of second degree assault. The amended information alleged that petitioner did "unlawfully and feloniously knowingly inflict grievous bodily harm upon George Ritter". The victim's companion identified petitioner as the man who had confronted them with a demand for their groceries. When Ritter refused, petitioner struck him twice in the face with a closed fist and then took the groceries. The police report indicated that Mr. Ritter, a 68-year-old man, was bleeding heavily from the mouth and that his mouth was cut or torn approximately 2 to 3 inches on both corners and approximately 3 to 4 inches in the middle (sic). His wounds required hospitalization and surgery.

Petitioner could have appealed the judgment and [725]*725sentence on the circumstances of the taking of the plea, State v. Saylors, 70 Wn.2d 7, 422 P.2d 477 (1966), but did not. Therefore, he confronts the rule that a personal restraint petition is not to be used as a substitute for an appeal, except to show constitutional error resulting in actual prejudice. In re Hews, 99 Wn.2d 80, 660 P.2d 263 (1983). Such prejudice results from a constitutionally invalid plea. Hews, at 88.

Petitioner pleaded guilty to the amended charge of second degree assault as charged in the information, a copy of which he acknowledged receiving. In his own words, he stated he was charged with the crime because he hit Mr. Ritter in the face causing injury. The language of the criminal information, together with his statement on plea of guilty, signed by him in open court in the presence of his attorney, provide prima facie verification of petitioner's understanding of the nature of the charge. In re Keene, 95 Wn.2d 203, 208-09, 622 P.2d 360 (1980); see also State v. Perez, 33 Wn. App. 258, 654 P.2d 708 (1982). Petitioner has presented no evidence refuting the record to show that he was not sufficiently aware of the essential elements of the crime. Cf. State v. Taft, 49 Wn.2d 98, 297 P.2d 1116 (1956) (evidence showed the defendant pleaded guilty under a misapprehension as to the essential elements of the crime, that he had limited mental capacity, and lacked advice of counsel).

The factual basis issue is somewhat more troublesome. The precise question here is not whether petitioner understood the charge, or whether his conduct constituted the offense of second degree assault, but whether the record contains a factual basis for the plea. CrR 4.2(d) requires the judge taking a guilty plea to be "satisfied that there is a factual basis for the plea." The factual basis may be established from any reliable source as long as the material is made a part of the record. In re Keene, 95 Wn.2d at 210 n.2, citing State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976). The trial court may rely, for example, on statements given to the police by witnesses to the crime and the prose[726]*726cutor's affidavit of probable cause. State v. Osborne, 35 Wn. App. 751, 669 P.2d 905 (1983); State v. Norval, 35 Wn. App. 775, 669 P.2d 1264 (1983). In this case, the prosecutor's "pen report" attached the police report which described the sequence of events, the extent of the victim's injuries, and the evidence against Mr. Hilyard. However, the "pen report" was not part of the record before the court at the plea hearing. A factual basis cannot be established after the plea is taken, such as at the time of sentencing. In re Keene, 95 Wn.2d at 210.

The State argues that the plea of guilty to the language of the amended information serves to establish a factual basis for the plea. This contention was rejected in In re Taylor, 31 Wn. App. 254, 258, 640 P.2d 737 (1982). In Taylor, the court construed Keene to mean that

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.

We disagree with this reading of Keene, however.

We perceive that Keene both recognizes and preserves the rule prohibiting collateral attacks upon guilty pleas based on an alleged violation of CrR 4.2(d). The Keene opinion's discussion of the factual basis issue is couched entirely in terms of reference to CrR 4.2(d) and its antecedent, Fed. R. Crim. P. 11, and does not refer to constitutional principles. See 95 Wn.2d at 209-10. As previously explained in Wood v. Morris, 87 Wn.2d 501, 508-11, 554 P.2d 1032 (1976), CrR 4.2(d) was promulgated — as was the federal rule — to aid the trial judge in his constitutionally required acceptance of a voluntary guilty plea and to insure a complete record of the factors inherent in a voluntary plea. Faithful compliance with the court rules pertaining to acceptance of a plea of guilty will decrease the number of occasions on which a plea must be set aside to [727]*727correct the "manifest injustice" of an involuntary plea. See State v. Taylor, 83 Wn.2d 594, 521 P.2d 699 (1974). However, CrR 4.2 is not the embodiment of a constitutionally valid plea; strict adherence to the rule is "not a constitutionally mandated procedure." In re Vensel, 88 Wn.2d 552, 554, 564 P.2d 326 (1977).

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In Re the Personal Restraint of Hilyard
695 P.2d 596 (Court of Appeals of Washington, 1985)

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695 P.2d 596, 39 Wash. App. 723, 1985 Wash. App. LEXIS 2261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-hilyard-washctapp-1985.