FILED
SEPT. 24, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DNISION THREE
STATE OF WASHINGTON, ) No. 30984-3-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSHUA ALLEN RUTHERFORD, )
)
Appellant. )
KULIK, J. - Joshua Rutherford entered a guilty plea to one count of third degree
child rape and one count of third degree rape. Mr. Rutherford appeals, arguing that his
guilty plea is invalid because the trial court failed to infonn him of the specific
constitutional rights he forfeited as a part of his plea. We disagree and affinn. We also
affinn the trial court's assessment ofMr. Rutherford's legal fmancial obligations (LFOs).
FACTS
Mr. Rutherford pleaded guilty to one count of third degree rape of a child and one
count of third degree rape. Paragraph number five of the guilty plea listed six
constitutional rights that Mr. Rutherford agreed to forfeit by pleading guilty. Mr. No.30984-3-III State v. Rutherford
Rutherford signed a plea statement, certifYing that his attorney explained all of the
provisions of the agreement and that Mr. Rutherford understood them all.
At the plea hearing, the court confirmed with Mr. Rutherford that he read and
reviewed the plea statement with his attorney before signing it. Mr. Rutherford told the
court that he had no questions about the plea statement. Then, the court engaged Mr.
Rutherford in a question and answer session regarding the two charges to which he was
pleading guilty, including the maximum penalty, apparent offender score, standard range
and term of community custody for each count, and other consequences of the plea.
Regarding constitutional rights, the court stated, "Paragraph 5 on page 3 indicates
that you have certain constitutional rights. When you plead guilty, you give up those
rights. Do you understand that?" Report of Proceedings (RP) at 4. Mr. Rutherford
answered "yes." RP at 4. Mr. Rutherford also confirmed he understood that the State
was not required to prove the elements of his crime beyond a reasonable doubt. After
further questioning about other aspects of the plea, the court determined that Mr.
Rutherford's plea was made knowingly, intelligently, and voluntarily.
The court accepted the plea and found Mr. Rutherford guilty of third degree child
rape and third degree rape. The court imposed concurrent sentences for the two offenses,
for a total term of confinement of 34 months.
No. 30984-3-III State v. Rutherford
The court also ordered Mr. Rutherford to pay over $1,700 in LFOs, payable at $50
per month commencing 90 days after release from custody or when funds become
available in the Department of Corrections. The court made no oral inquiry or statement
on Mr. Rutherford's ability to pay. However, section 2.5 of the judgment and sentence
generically stated that the court considered the defendant's past, present, and future
ability to pay and found that the defendant had the ability or likely future ability to pay the
LFOs as ordered by the court.
Mr. Rutherford appeals. He contends that his guilty plea is invalid because the
court's finding that he had the future ability to pay his LFOs is not supported by the
record.
ANALYSIS
Guilty Plea. A valid guilty plea requires that a defendant intelligently and
voluntarily enter into the plea with knowledge that certain constitutional rights will be
waived. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). "Whether a plea is
knowingly, intelligently, and voluntarily made is determined from a totality of the
circumstances." Id.
By entering a plea of guilty, a defendant necessarily waives important
constitutional rights, including the right to a jury trial, to confront one's accusers, and the
privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct.
1709,23 L. Ed. 2d 274 (1969). "[T]here is no constitutional requirement that there be
express articulation and waiver of the three rights referred to in Boykin by the defendant
at the time of acceptance of his guilty plea if it appears from the record ... that the
accused's plea was intelligently and voluntarily made, with knowledge of its
consequences." Woodv. Morris, 87 Wn.2d 501,508,554 P.2d 1032 (1976).
In Branch, the court held that under the totality of the circumstances, Mr. Branch's
plea and waiver of rights was intelligently and voluntarily made, with full knowledge of
its consequences, when Mr. Branch stated that he knew he was giving up the specific
rights listed on the plea statement, and the trial judge generally asked if Mr. Branch had
any questions regarding these rights. Branch, 129 Wn.2d at 643-44.
Here, as in Branch, Mr. Rutherford had full understanding of the constitutional
rights he forfeited as a result of his guilty plea. The specific constitutional rights that Mr.
Rutherford forfeited were listed in the plea statement signed by Mr. Rutherford. At the
plea hearing, the trial court asked Mr. Rutherford ifhe understood that he was waiving
these constitutional rights listed in the plea statement. Mr. Rutherford confirmed that he
understood. The court was not required to restate the constitutional rights being waived
to confirm Mr. Rutherford's understanding of the plea.
No.30984-3-III State v. Rutherford
Under the totality of the circumstances, Mr. Rutherford's plea was knowing,
voluntary, intelligent, and with the understanding of the constitutional rights being
waived.
LPO We review a trial court's determination on an offender's financial resources
and ability to pay under the clearly erroneous standard. State v. Bertrand, 165 Wn. App.
393,404 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wn. App. 303, 312,818
P.2d 1116, 837 P.2d 646 (1991)), review denied, 175 Wn.2d 1014 (2012). "A finding of
fact is clearly erroneous when, although there is some evidence to support it, review of all
of the evidence leads to a 'definite and firm conviction that a mistake has been
committed.'" Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113
(2007) (quoting Wenatchee Sportsmen Ass 'n v. Chelan County, 141 Wn.2d 169, 176, 4
P.3d 123 (2000)).
Upon a criminal conviction, a superior court may order the payment of a LFO,
which can include restitution, costs, fines, and other assessments. RCW 9.94A.760(l).
Costs may be imposed on a convicted defendant for expenses specially incurred by the
State in prosecuting the defendant. RCW 10.01.160.
In determining the amount and method of payment of costs, the court shall take
account ofthe financial resources of the defendant and the nature ofthe burden that
payment of costs will impose.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED
SEPT. 24, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DNISION THREE
STATE OF WASHINGTON, ) No. 30984-3-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSHUA ALLEN RUTHERFORD, )
)
Appellant. )
KULIK, J. - Joshua Rutherford entered a guilty plea to one count of third degree
child rape and one count of third degree rape. Mr. Rutherford appeals, arguing that his
guilty plea is invalid because the trial court failed to infonn him of the specific
constitutional rights he forfeited as a part of his plea. We disagree and affinn. We also
affinn the trial court's assessment ofMr. Rutherford's legal fmancial obligations (LFOs).
FACTS
Mr. Rutherford pleaded guilty to one count of third degree rape of a child and one
count of third degree rape. Paragraph number five of the guilty plea listed six
constitutional rights that Mr. Rutherford agreed to forfeit by pleading guilty. Mr. No.30984-3-III State v. Rutherford
Rutherford signed a plea statement, certifYing that his attorney explained all of the
provisions of the agreement and that Mr. Rutherford understood them all.
At the plea hearing, the court confirmed with Mr. Rutherford that he read and
reviewed the plea statement with his attorney before signing it. Mr. Rutherford told the
court that he had no questions about the plea statement. Then, the court engaged Mr.
Rutherford in a question and answer session regarding the two charges to which he was
pleading guilty, including the maximum penalty, apparent offender score, standard range
and term of community custody for each count, and other consequences of the plea.
Regarding constitutional rights, the court stated, "Paragraph 5 on page 3 indicates
that you have certain constitutional rights. When you plead guilty, you give up those
rights. Do you understand that?" Report of Proceedings (RP) at 4. Mr. Rutherford
answered "yes." RP at 4. Mr. Rutherford also confirmed he understood that the State
was not required to prove the elements of his crime beyond a reasonable doubt. After
further questioning about other aspects of the plea, the court determined that Mr.
Rutherford's plea was made knowingly, intelligently, and voluntarily.
The court accepted the plea and found Mr. Rutherford guilty of third degree child
rape and third degree rape. The court imposed concurrent sentences for the two offenses,
for a total term of confinement of 34 months.
No. 30984-3-III State v. Rutherford
The court also ordered Mr. Rutherford to pay over $1,700 in LFOs, payable at $50
per month commencing 90 days after release from custody or when funds become
available in the Department of Corrections. The court made no oral inquiry or statement
on Mr. Rutherford's ability to pay. However, section 2.5 of the judgment and sentence
generically stated that the court considered the defendant's past, present, and future
ability to pay and found that the defendant had the ability or likely future ability to pay the
LFOs as ordered by the court.
Mr. Rutherford appeals. He contends that his guilty plea is invalid because the
court's finding that he had the future ability to pay his LFOs is not supported by the
record.
ANALYSIS
Guilty Plea. A valid guilty plea requires that a defendant intelligently and
voluntarily enter into the plea with knowledge that certain constitutional rights will be
waived. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). "Whether a plea is
knowingly, intelligently, and voluntarily made is determined from a totality of the
circumstances." Id.
By entering a plea of guilty, a defendant necessarily waives important
constitutional rights, including the right to a jury trial, to confront one's accusers, and the
privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct.
1709,23 L. Ed. 2d 274 (1969). "[T]here is no constitutional requirement that there be
express articulation and waiver of the three rights referred to in Boykin by the defendant
at the time of acceptance of his guilty plea if it appears from the record ... that the
accused's plea was intelligently and voluntarily made, with knowledge of its
consequences." Woodv. Morris, 87 Wn.2d 501,508,554 P.2d 1032 (1976).
In Branch, the court held that under the totality of the circumstances, Mr. Branch's
plea and waiver of rights was intelligently and voluntarily made, with full knowledge of
its consequences, when Mr. Branch stated that he knew he was giving up the specific
rights listed on the plea statement, and the trial judge generally asked if Mr. Branch had
any questions regarding these rights. Branch, 129 Wn.2d at 643-44.
Here, as in Branch, Mr. Rutherford had full understanding of the constitutional
rights he forfeited as a result of his guilty plea. The specific constitutional rights that Mr.
Rutherford forfeited were listed in the plea statement signed by Mr. Rutherford. At the
plea hearing, the trial court asked Mr. Rutherford ifhe understood that he was waiving
these constitutional rights listed in the plea statement. Mr. Rutherford confirmed that he
understood. The court was not required to restate the constitutional rights being waived
to confirm Mr. Rutherford's understanding of the plea.
No.30984-3-III State v. Rutherford
Under the totality of the circumstances, Mr. Rutherford's plea was knowing,
voluntary, intelligent, and with the understanding of the constitutional rights being
waived.
LPO We review a trial court's determination on an offender's financial resources
and ability to pay under the clearly erroneous standard. State v. Bertrand, 165 Wn. App.
393,404 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wn. App. 303, 312,818
P.2d 1116, 837 P.2d 646 (1991)), review denied, 175 Wn.2d 1014 (2012). "A finding of
fact is clearly erroneous when, although there is some evidence to support it, review of all
of the evidence leads to a 'definite and firm conviction that a mistake has been
committed.'" Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113
(2007) (quoting Wenatchee Sportsmen Ass 'n v. Chelan County, 141 Wn.2d 169, 176, 4
P.3d 123 (2000)).
Upon a criminal conviction, a superior court may order the payment of a LFO,
which can include restitution, costs, fines, and other assessments. RCW 9.94A.760(l).
Costs may be imposed on a convicted defendant for expenses specially incurred by the
State in prosecuting the defendant. RCW 10.01.160.
In determining the amount and method of payment of costs, the court shall take
account ofthe financial resources of the defendant and the nature ofthe burden that
payment of costs will impose. RCW 10.01.160(3). However, the court is not required to
enter formal, specific findings regarding a defendant's ability to pay. State v. Curry, 118
Wn.2d 911,916, 829 P.2d 166 (1992).
Still, the trial court must make an adequate record for us to conclude there is a
sufficient "factual basis for the defendant's ... ability to pay." Baldwin, 63 Wn. App. at
311. "[W]hen the presentence report establishes a factual basis for the defendant's future
ability to pay and the defendant does not object, the requirement of inquiry into the ability
to pay is satisfied." Id.
Here, section 2.5 of the judgment and sentence shows that the trial court
considered Mr. Rutherford's past, present, and future ability to pay and found that Mr.
Rutherford had the ability or likely future ability to pay the LFOs.
While the court did not address Mr. Rutherford's ability to pay during the
sentencing hearing, the court's finding from the judgment and sentence is supported by
the record. Mr. Rutherford's presentence investigation report stated that he graduated
from high school one year earlier, had just been hired as a cook, had minimal debt or
financial obligations, and was able to provide for himself.
The record provides a sufficient factual basis to determine that Mr. Rutherford
could pay LFOs because he was employable, had little debt, and was able to provide for
himself. Thus, the evidence supports the finding in the judgment and sentence that Mr.
Rutherford had the ability or likely future ability to pay the ordered LFOs.
We affirm the validity of the guilty plea and the assessment ofLFOs.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Kulik, J.
WE CONCUR:
orsmo, C:1.