State v. Barton

609 P.2d 1353, 93 Wash. 2d 301, 1980 Wash. LEXIS 1278
CourtWashington Supreme Court
DecidedApril 17, 1980
Docket46231
StatusPublished
Cited by107 cases

This text of 609 P.2d 1353 (State v. Barton) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barton, 609 P.2d 1353, 93 Wash. 2d 301, 1980 Wash. LEXIS 1278 (Wash. 1980).

Opinions

Dolliver, J.

This case presents the issue of whether a defendant, upon entering a plea of guilty, must be informed of the possibility of sentence enhancement under the habitual criminal statute, RCW 9.92.090. We hold that neither constitutional due process nor CrR 4.2(d) requires that a defendant be advised of a possible habitual criminal proceeding.

On or about May 16, 1977, defendant was arraigned on charges of possessing stolen property in the first degree, count 1; taking a motor vehicle without permission, count 2; [303]*303and possessing stolen property in the second degree, counts 3 and 4. Defendant entered a plea of not guilty on each count.

Thereafter, pursuant to a plea bargain, defendant entered a plea of guilty to count 1 of the amended information charging him with possession of stolen property in the first degree. As a part of the plea bargain, the prosecutor agreed to recommend probation if defendant had no prior felonies (adult or juvenile), nor more than three misdemeanors. Defendant was advised by the court that the maximum sentence which could be imposed was 10 years' confinement, a $10,000 fine, or both. The possibility of enhancing the maximum sentence to life imprisonment under the habitual offender statute was never mentioned by the trial court nor by defendant's counsel.

Subsequent to defendant's plea of guilty, the prosecutor discovered defendant's real name was Elvie Earl Turner and that Turner had three prior felony convictions, one each in Oklahoma, Texas and Virginia. The prosecutor filed a supplemental sentencing information pursuant to RCW 9.92.090 accusing defendant of being an habitual offender. Prior to trial on the supplemental sentencing information, defendant filed a motion to withdraw his guilty plea on the ground that the plea was not voluntary as it took place without the full understanding of the consequences of his plea. The motion was heard and denied prior to sentencing on the original conviction.

At trial, the court found defendant to have two prior felony convictions; he was adjudicated an habitual offender; and sentenced to life imprisonment. Defendant appealed the decision to the Court of Appeals. His court appointed counsel filed an Anders brief and a motion to withdraw in accordance with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 396, rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967). In an unpublished opinion, the Court of Appeals affirmed the judgment and granted defendant's counsel's motion for leave to withdraw. [304]*304We granted defendant's pro se petition for review. Defendant seeks reversal of the decision or remand to the trial court with instructions to allow him to withdraw his plea of guilty and conduct, a new trial or in the alternative to dismiss the charges.

It is a violation of due process to accept a guilty plea without an affirmative showing that the plea was made intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). Moreover, in addition to the minimum requirements imposed by the constitution, criminal pleas are governed by rules of court. CrR 4.2, modeled after rule 11 of the Federal Rules of Criminal Procedure, 18 U.S.C., app. at 1416-17 (1977), establishes requirements beyond the constitutional minimum. It provides:

(d) Voluntariness. The court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

(Italics ours.) The record of a plea hearing or clear and convincing extrinsic evidence must affirmatively disclose a guilty plea was made intelligently and voluntarily, with an understanding of the full consequences of such a plea. Wood v. Morris, 87 Wn.2d 501, 554 P.2d 1032 (1976).

Defendant contends that he was not fully informed of the consequences of his guilty plea because the State did not advise him that habitual criminal proceedings could be filed against him if he had two or more prior felony convictions. RCW 9.92.090 provides, in part:

Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times [305]*305convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, [shall be adjudged to be an habitual criminal and] shall be punished by imprisonment in the state penitentiary for life.

Defendant claims that he would not have entered a plea of guilty had he known that the plea would entail an enhanced sentence of life imprisonment.

Defendant must be advised of the maximum sentence which could be imposed prior to entry of the guilty plea. CrR 4.2(g); In re Vensel, 88 Wn.2d 552, 564 P.2d 326 (1977); State v. Tourtellotte, 88 Wn.2d 579, 564 P.2d 799 (1977); In re Williams, 21 Wn. App. 238, 583 P.2d 1262 (1978). An habitual criminal supplemental sentencing information becomes a part of the original felony (State v. Bryant, 73 Wn.2d 168, 437 P.2d 398 (1968)), and provides increased punishment for the last offense. State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958). However, neither the constitution nor CrR 4.2(d) requires that a criminal defendant be advised of the possibility of habitual criminal proceedings prior to the entry of a plea of guilty. State v. Johnston, 17 Wn. App. 486, 564 P.2d 1159, review denied, 89 Wn.2d 1007 (1977). Both defense counsel's Anders brief and the Court of Appeals relied entirely on Johnston.

We agree with the analysis in Johnston. Defendant must be informed of all the direct consequences of his plea prior to acceptance of a guilty plea. On the other hand, defendant need not be advised of all possible collateral consequences of his plea. Cuthrell v. Director,

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Cite This Page — Counsel Stack

Bluebook (online)
609 P.2d 1353, 93 Wash. 2d 301, 1980 Wash. LEXIS 1278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barton-wash-1980.