Hamilton, J.
Two applications for writs of habeas cor
pus and one petition for post-conviction relief pursuant to CrR 7.7 have been consolidated for consideration. They raise the question of whether the petitioners, prior to their respective guilty pleas, received adequate notice of mandatory minimum penalties imposed pursuant to the “firearm” statute, RCW 9.41.025,
and the “deadly weapon” statute,
RCW 9.95.040
for the use of guns in the commission of crimes.
Petitioner Cosner was initially charged with first-degree
assault and second-degree burglary. Plea bargaining ensued as a result of which he was charged by amended information with second-degree assault and second-degree burglary to which charges he entered pleas of guilty. Both counts of the amended information essentially alleged that he committed the respective offenses while possessed of a “firearm.” At the time petitioner entered his guilty pleas, the State pointed out to the trial judge that the language of the charges precluded the possibility of probation, and also that it was requesting a special finding pursuant to RCW 9.95.015,
which in turn would require, under RCW 9.95.040, the imposition of a mandatory minimum prison term by the Board of Prison Terms and Paroles. Counsel for petitioner acknowledged that he was aware of the State’s position and would stipulate that petitioner was armed at the time of commission of the crimes charged. In response to a direct question by the trial judge, petitioner admitted he was armed with a shotgun when he engaged in the offenses involved.
At the time of sentencing, counsel for petitioner once again indicated awareness of the special finding requested by the State and stated he was not going to argue against it. In the course of the hearing, it was made clear to petitioner and his counsel that the minimum mandatory term would be 7% years inasmuch as petitioner had been previously convicted of a felony. The special finding of being armed with a deadly weapon was entered and is part of the record herein.
Petitioner Cramer, also known as Tommy Owen Hartz, was charged by information with four counts of robbery, two counts of kidnapping, one count of second-degree burglary and one count of second-degree assault. All counts charged the crimes were committed while petitioner was “armed with a shotgun.” Plea negotiations resulted in entry of pleas of guilty to two counts of robbery. In response to a direct question from the trial judge, petitioner acknowledged that at the time he committed the offenses he was armed with a deadly weapon and a special finding was so made by the trial judge.
Prior to petitioner’s pleas of guilty, colloquy ensued between the trial judge and counsel for the State and for petitioner concerning the effect of the entry of a special finding regarding use of a firearm during commission of the crimes. The trial judge at this time questioned counsel as to whether the finding would result in a 5-year or a 7%-year mandatory minimum. Both counsel for the State and petitioner advised the trial judge that the mandatory minimum term would be 5 years. Petitioner’s counsel further advised the trial judge that petitioner was an intelligent individual and fully understood the consequences of his proposed pleas of guilty. Apparently, petitioner was not advised or told that because of a prior felony conviction the special finding would result in a 71/2-year mandatory minimum term. Thereafter, upon petitioner’s arrival at the correctional facility, the Board of Prison Terms and Paroles fixed a 7%-year mandatory minimum term pursuant to RCW 9.95.040(2).
Petitioner Christian was charged by amended information with eight counts of assault in the second degree, two counts of robbery, one count of burglary, and one count of aiding a prisoner to escape. All counts, except the aiding-in-escape charge, alleged that at the time of commission petitioner was armed with a “deadly weapon,” a “dangerous weapon,” or a “firearm.” As a result of plea bargaining, petitioner with advice of counsel ultimately entered pleas
of guilty to assault in the second degree, burglary in the first degree, aiding a prisoner to escape, and robbery. In a written “statement on plea of guilty,” petitioner acknowledged understanding that he would be subject to a 5-year mandatory minimum. In lieu of a separate special finding, the trial judge incorporated into the judgment and sentence a finding that petitioner at the time of committing the crimes involved was armed with a deadly weapon. Thereafter, the Board of Prison Terms and Paroles fixed petitioner’s minimum term at 8% years, including a 7%-year mandatory minimum under RCW 9.95.040(2).
All petitioners contend that the charging parts of the respective informations did not contain adequate allegations to put them on notice prior to their guilty pleas that they would be subject to the enhanced penalties projected by RCW 9.41.025 and/or RCW 9.95.040. They further contend that the allegations of the informations did not give notice of which statute the State was relying upon. Alternatively, petitioners Cramer and Christian assert that they were misinformed during plea negotiations as to the length of the mandatory minimum terms to which they would be subject. In addition, petitioner Christian maintains that the trial judge’s incorporation of the “deadly weapon” finding in the judgment and sentence does not amount to a “special finding” under RCW 9.95.015 and is therefore a nullity.
The appellate courts of this state have held that when the State seeks to rely upon either RCW 9.41.025 or RCW 9.95.040, or both, due process of law requires that the information contain specific allegations to that effect, thus putting the accused person upon notice that enhanced consequences will flow with a conviction.
State v. Frazier,
81 Wn.2d 628, 503 P.2d 1073 (1972);
State v. Pringle, 83
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Hamilton, J.
Two applications for writs of habeas cor
pus and one petition for post-conviction relief pursuant to CrR 7.7 have been consolidated for consideration. They raise the question of whether the petitioners, prior to their respective guilty pleas, received adequate notice of mandatory minimum penalties imposed pursuant to the “firearm” statute, RCW 9.41.025,
and the “deadly weapon” statute,
RCW 9.95.040
for the use of guns in the commission of crimes.
Petitioner Cosner was initially charged with first-degree
assault and second-degree burglary. Plea bargaining ensued as a result of which he was charged by amended information with second-degree assault and second-degree burglary to which charges he entered pleas of guilty. Both counts of the amended information essentially alleged that he committed the respective offenses while possessed of a “firearm.” At the time petitioner entered his guilty pleas, the State pointed out to the trial judge that the language of the charges precluded the possibility of probation, and also that it was requesting a special finding pursuant to RCW 9.95.015,
which in turn would require, under RCW 9.95.040, the imposition of a mandatory minimum prison term by the Board of Prison Terms and Paroles. Counsel for petitioner acknowledged that he was aware of the State’s position and would stipulate that petitioner was armed at the time of commission of the crimes charged. In response to a direct question by the trial judge, petitioner admitted he was armed with a shotgun when he engaged in the offenses involved.
At the time of sentencing, counsel for petitioner once again indicated awareness of the special finding requested by the State and stated he was not going to argue against it. In the course of the hearing, it was made clear to petitioner and his counsel that the minimum mandatory term would be 7% years inasmuch as petitioner had been previously convicted of a felony. The special finding of being armed with a deadly weapon was entered and is part of the record herein.
Petitioner Cramer, also known as Tommy Owen Hartz, was charged by information with four counts of robbery, two counts of kidnapping, one count of second-degree burglary and one count of second-degree assault. All counts charged the crimes were committed while petitioner was “armed with a shotgun.” Plea negotiations resulted in entry of pleas of guilty to two counts of robbery. In response to a direct question from the trial judge, petitioner acknowledged that at the time he committed the offenses he was armed with a deadly weapon and a special finding was so made by the trial judge.
Prior to petitioner’s pleas of guilty, colloquy ensued between the trial judge and counsel for the State and for petitioner concerning the effect of the entry of a special finding regarding use of a firearm during commission of the crimes. The trial judge at this time questioned counsel as to whether the finding would result in a 5-year or a 7%-year mandatory minimum. Both counsel for the State and petitioner advised the trial judge that the mandatory minimum term would be 5 years. Petitioner’s counsel further advised the trial judge that petitioner was an intelligent individual and fully understood the consequences of his proposed pleas of guilty. Apparently, petitioner was not advised or told that because of a prior felony conviction the special finding would result in a 71/2-year mandatory minimum term. Thereafter, upon petitioner’s arrival at the correctional facility, the Board of Prison Terms and Paroles fixed a 7%-year mandatory minimum term pursuant to RCW 9.95.040(2).
Petitioner Christian was charged by amended information with eight counts of assault in the second degree, two counts of robbery, one count of burglary, and one count of aiding a prisoner to escape. All counts, except the aiding-in-escape charge, alleged that at the time of commission petitioner was armed with a “deadly weapon,” a “dangerous weapon,” or a “firearm.” As a result of plea bargaining, petitioner with advice of counsel ultimately entered pleas
of guilty to assault in the second degree, burglary in the first degree, aiding a prisoner to escape, and robbery. In a written “statement on plea of guilty,” petitioner acknowledged understanding that he would be subject to a 5-year mandatory minimum. In lieu of a separate special finding, the trial judge incorporated into the judgment and sentence a finding that petitioner at the time of committing the crimes involved was armed with a deadly weapon. Thereafter, the Board of Prison Terms and Paroles fixed petitioner’s minimum term at 8% years, including a 7%-year mandatory minimum under RCW 9.95.040(2).
All petitioners contend that the charging parts of the respective informations did not contain adequate allegations to put them on notice prior to their guilty pleas that they would be subject to the enhanced penalties projected by RCW 9.41.025 and/or RCW 9.95.040. They further contend that the allegations of the informations did not give notice of which statute the State was relying upon. Alternatively, petitioners Cramer and Christian assert that they were misinformed during plea negotiations as to the length of the mandatory minimum terms to which they would be subject. In addition, petitioner Christian maintains that the trial judge’s incorporation of the “deadly weapon” finding in the judgment and sentence does not amount to a “special finding” under RCW 9.95.015 and is therefore a nullity.
The appellate courts of this state have held that when the State seeks to rely upon either RCW 9.41.025 or RCW 9.95.040, or both, due process of law requires that the information contain specific allegations to that effect, thus putting the accused person upon notice that enhanced consequences will flow with a conviction.
State v. Frazier,
81 Wn.2d 628, 503 P.2d 1073 (1972);
State v. Pringle, 83
Wn.2d 188, 517 P.2d 192 (1973);
State v. Mims,
9 Wn. App. 213, 511 P.2d 1383 (1973);
Miller v. Morris,
10 Wn. App. 694, 519 P.2d 1314 (1974);
State v. Smith,
11 Wn. App. 216, 521 P.2d 1197 (1974). Failure of the State to so allege precludes reliance upon the statutes by the trial court or the Board of Prison Terms and Paroles.
We do not propose to recede from these holdings. Rather, we again emphasize the necessity of prosecuting attorneys uniformly adhering to the announced rule. Preferably, compliance should take the form of pleading by statutory language and citation of the statute or statutes upon which they are proceeding,
i.e.,
firearms and/or deadly weapons. Furthermore, the written “Statement of Defendant on Plea of Guilty” as set forth in CrR 4.2(g) should be provided and made a formal part of the record in all applicable cases.
Turning, then, to the instant cases, we do not, under the circumstances here present, deem that the rigidity of the rule is such as to compel the principal relief requested, i.e., nullification of the applicable mandatory minimums. Upon the record before us in each case it is undisputed that: (a) each petitioner was armed with a deadly weapon at the time of committing the felonies charged; (b) each petitioner was represented by able and competent counsel; (c) in each instance substantial plea bargaining resulted in reduction of charges; and (d) in each case enhanced penalty was discussed in open court in the presence of each petitioner. It thus strains credulity to suggest that petitioners were unaware of a mandatory minimum requirement in connection with the offenses to which they were pleading. It follows that they were, therefore, not denied due process and that their pleas of guilty were voluntarily and knowingly entered.
Petitioner Cosner was not only advised of the applicability of a mandatory minimum, but also of the fact that the mandatory minimum involved was 7% years. His petition is accordingly dismissed.
Petitioners Cramer and Christian, while advised of the involvement of a mandatory minimum were, nevertheless, misinformed as to the length thereof. Their petitions are accordingly granted to the extent that the Board of Prison Terms and Paroles is directed to reduce their man
datory minimum terms in accordance with their understanding of the length thereof at the time of their pleas.
We find no substantial merit in petitioner Christian’s contention that incorporation of the “deadly weapon” finding in the judgment and sentence vitiates such a finding. We concede, however, that the better practice, and the one more in keeping with the purport of RCW 9.95.015, is to enter a special finding of record separate and distinct from the judgment and sentence.
See State v. Coma, 69
Wn.2d 177, 417 P.2d 853 (1966).
Hale, C.J., and Finley, Rosellini, and Wright, JJ., concur.