In re the Personal Restraint of Mayer

128 Wash. App. 694
CourtCourt of Appeals of Washington
DecidedAugust 4, 2005
DocketNo. 22183-1-III
StatusPublished
Cited by48 cases

This text of 128 Wash. App. 694 (In re the Personal Restraint of Mayer) 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 Mayer, 128 Wash. App. 694 (Wash. Ct. App. 2005).

Opinion

[698]*698¶1 Jeremy Leland Mayer seeks relief from personal restraint imposed for his 1993 Spokane County conviction upon Alford1 plea of guilty to a single count of second degree murder under both the intentional and felony murder (predicated upon second degree assault) alternatives of the second degree murder statute, RCW 9A.32.050(1)(a) and (b).

Schultheis, J.

¶2 The primary question is whether Mr. Mayer’s conviction must be vacated in light of the Supreme Court’s holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002),. that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976). We deny Mr. Mayer’s petition.

FACTS

¶3 Mr. Mayer was originally charged under RCW 9A-,32.030(l)(a) and (c) with first degree premeditated murder and first degree felony murder committed in the course of robbery for the 1991 killing of Randolph McNeil. During plea negotiations, the information was amended to charge second degree murder, committed as follows:

That the defendant, JEREMY LELAND MAYER, in Spokane County, Washington, on or about May 12, 1991, with intent to cause the death of another person, and while committing and attempting to commit the crime of Second Degree Assault, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Randolph McNeil, a human being, said death occurring on or about May 12, 1991.

State’s Resp. (App. C — Am. Information) (emphasis added). The amended information used the incorrect statutory reference, RCW 9A.32.030(1)(a) and (b), whereas the correct cite for the second degree murder alternatives charged is RCW 9A.32.050(1)(a) and (b).

[699]*699¶4 Mr. Mayer signed a statement on plea of guilty to the charge of second degree murder with the elements of the crime as stated in the information and a presumptive sentencing range of 144 to 192 months. A police detective’s affidavit of probable cause filed with the trial court prior to entry of the plea revealed Mr. Mayer’s role in killing the victim. Earlier on the day of the murder, Mr. Mayer commented to David McGhee that he would “ ‘take care of him (the victim) for you.’ ” State’s Resp. (App. B — Aff. of Detective Rick Grabenstein 1). Mr. Mayer later told both Mr. McGhee and James Carver that he killed the victim with a rock. Mr. Mayer subsequently told a police detective that he knew the location of a body in Spokane. He said he witnessed the killing of this person he knew as “Randy,” who was murdered because he complained too much and angered the killers. Id. (Aff. of Grabenstein 3). One witness to the murder observed an accomplice place the victim in a choke hold while Mr. Mayer hit him with his fists. When the victim collapsed and fell to the ground face up, Mr. Mayer struck him in the face three times with a 14-inch rock. Autopsy findings as to the cause of death coincided with the witness descriptions of how Mr. McNeil was killed.

¶5 Mr. Mayer entered an Alford plea to second degree murder. The court accepted the plea as knowing, voluntary, intelligent, and supported by factual basis. The court imposed a 180-month presumptive sentence. The judgment and sentence document contains the same statutory citation error as the amended information, i.e., a reference to RCW 9A.32.030(l)(a) and (b) instead of the correct citation, RCW 9A.32.050(l)(a) and (b).

¶6 Mr. Mayer filed this petition on June 20, 2003, after the Supreme Court issued its decision in Andress. We stayed the matter pending In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), in which the court ultimately held that the Andress decision applied retroactively to vacate the personal restraint petitioners’ convictions for second degree felony murder predicated on [700]*700assault. Id. at 861. We then lifted the stay and appointed counsel to address the applicability of Andress to Mr. Mayer’s petition.

REVIEW STANDARD

¶7 To obtain relief in a personal restraint petition, Mr. Mayer must show, by a preponderance of the evidence, actual and substantial prejudice resulting from alleged constitutional errors, or for alleged nonconstitutional errors, a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); see also Hinton, 152 Wn.2d at 858-59.

DISCUSSION

¶8 a. Citation Error. As a threshold matter, Mr. Mayer contends his Alford plea was rendered involuntary by the statutory citation error in the amended information. He explains that he wrote in his plea statement that he was entering an Alford plea to second degree murder based upon the elements as stated in the information. Yet the amended information cites the first degree murder statute while alleging the elements of second degree murder. He concludes this ambiguity precludes a valid plea to second degree murder. We disagree.

¶9 We review this issue raised more than one year from when the judgment became final in 1993 because it calls into question the facial validity of the judgment document. See RCW 10.73.090(1). But, as explained below, the statutory citation error in the amended information (and in the judgment and sentence document) is an obvious scrivener error that does not render the plea invalid.

¶10 The original information charged first degree murder under RCW 9A.32.030(1) alternatives (a) (premeditated intent), and (c) (causes death in furtherance of robbery). The information was amended during plea negotia[701]*701tions to charge second degree murder under alternatives (a) (intent) and (b) (while committing second degree assault). The language in the amended information correctly recites the (a) and (b) alternative elements of second degree murder. There is no “(c)” alternative under RCW 9A.32.050(1). And the “(b)” alternative under RCW 9A.32.030 is first degree murder by engaging in conduct manifesting extreme indifference to human life.

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Bluebook (online)
128 Wash. App. 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-mayer-washctapp-2005.