State v. De RosiaState v. De Rosia
- Reporters:
- ,
- Before:
- Hunt
HUNT, J.
David DeRosia appeals his Alford1 plea conviction for second degree felony murder predicated on second degree child assault.
Because DeRosia‘s Alford plea neither conferred a benefit on him nor recited a factual basis to support a lesser included offense conviction, we hold that (1) Majors does not apply, and (2) Andress compels vacation of DeRosia‘s conviction and withdrawal of his plea. Accordingly, we reverse and remand without prejudice to the State‘s refiling any lawful charge, including first degree manslaughter.
FACTS
I. CHILD HOMICIDE
L.D.S., a 22-month-old toddler, was left by his mother in David DeRosia‘s care. When the mother returned, she found that L.D.S. had suffered a severe beating with massive trauma to his head and spine; he died the next day. Doctors determined that L.D.S.‘s injuries must have been intentionally inflicted. DeRosia gave contradictory versions about what had happened, but he consistently denied having harmed the child.
II. ALFORD PLEA
On December 4, 2001, DeRosia entered an Alford plea to second degree felony murder predicated on second degree child assault.4 His statement on plea of guilty reads, “Based upon the evidence presented against me, I believe that a judge or jury could find me guilty beyond a reasonable doubt, and I wish to get this matter behind me as quickly as possible.” Clerk‘s Papers (CP) at 20. Although DeRosia‘s guilty plea statement admits no facts, it does recite the elements of the charged crime, in pertinent part, as follows:
I am charged with: Murder in the Second Degree.
(a) The elements are: That he, David Eugene DeRosia II, being a person over the age of eighteen years, . . ., while committing or attempting to commit the crime of Assault of a Child in the Second Degree,. . ., did cause the death of L.D.S. (male, dob: 7/29/99), a human being under the age of thirteen years and not a participant in such crime, . . ., to wit: being a person over eighteen years of age, did intentionally assault L.D.S. (male, dob: 7/29/99) a human being under thirteen years of age and did thereby recklessly inflict substantial bodily harm upon L.D.S., thereby causing the death of L.D.S. (male, dob: 7/29/99) . . . in violation of
RCW 9A.32.050(1)(b) and9A.36.130(1)(a) .
CP at 12-13. DeRosia‘s guilty plea statement also acknowledged a standard range sentence of 123 to 220 months, with 24 to 48 months community custody, and a potential maximum term of life in prison.
The State offered DeRosia no reduction in charges or penalties and made no promises in exchange for his guilty plea. Rather, DeRosia pled guilty in hopes of seeking leniency from the sentencing court. Having determined that DeRosia was entering his Alford plea voluntarily, knowingly, and intelligently, the trial court accepted the plea and imposed an exceptional sentence of 340 months.
III. APPEAL
DeRosia appealed the exceptional sentence. The State responded with a motion on the merits.
Thereafter, our Supreme Court issued In Re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), holding that second degree felony murder cannot be predicated on assault under the felony murder statute,
Having heard oral argument, we now address the following issues:
I. In pleading guilty, did DeRosia waive his ability to appeal his conviction?
II. If not, does Andress compel vacation of DeRosia‘s Alford plea conviction for second degree felony murder, predicated on second degree child assault?
III. If not, should we set aside the plea or remand for the trial court to resentence him on the lesser included offense of first degree manslaughter?
ANALYSIS
I. RIGHT TO APPEAL
By pleading guilty, a defendant generally waives the right to appeal.6 But “a plea of guilty does not preclude an appeal where collateral questions, such as the validity of the statute, the sufficiency of the information, the jurisdiction of the court, or the circumstances under which the plea was made, are raised.” Fisher v. Bowman, 57 Wash.2d 535, 536, 358 P.2d 316 (1961).7 If the success of a collateral challenge depends on contesting certain facts to which the defendant stipulated as part of a negotiated plea agreement, however, the collateral challenge may be barred. Majors, 94 Wash.2d at 357-58, 616 P.2d 1237.
DeRosia argues that because he pled guilty to a charge later invalidated by Andress, his appeal falls within an exception to the general rule that he waived the right to appeal his guilty plea conviction. The State counters that, (1) as in Majors, DeRosia “has received the benefits of his plea bargain“; (2) he should be held to his guilty plea because he made it knowingly and voluntarily; and (3) a factual basis supports the plea. We disagree with the State and agree with DeRosia that Andress, not Majors, controls our decision in this case, and DeRosia may appeal.
A. Majors
Majors pleaded guilty to second degree murder and stipulated to his habitual offender status in exchange for the State‘s reducing the charge from first degree murder and dismissal of other charges. Majors, 94 Wash.2d at 355-56, 616 P.2d 1237. But the felonies that supported his habitual offender status occurred after the murder, rather than before; thus, the stipulated facts did not satisfy the elements for habitual offender status.8 Majors, 94 Wash.2d at 357, 616 P.2d 1237.
Although this legal deficiency was apparent from the face of the charging document, the Supreme Court held that Majors waived
Nonetheless, Majors does not apply here for several reasons.
1. No plea bargain benefit
First, unlike Majors, the State neither offered DeRosia reduced charges or penalties nor promised him any benefit in exchange for his guilty plea. Unlike Majors, DeRosia pled guilty to second degree felony murder as charged. Unlike Majors, DeRosia received no bargained-for consideration from the State for his guilty plea and his waiver of the right to attack his conviction collaterally. Thus, although DeRosia signed a plea “agreement,” it was not a “negotiated plea bargain” in any meaningful sense.10
2. No factual basis for lesser charges in Alford plea
Second, Majors has generally been limited to circumstances where the factual basis for the guilty plea, typically a non-Alford plea, supports more severe charges.11 Furthermore, Washington courts have distinguished Majors in cases where the State has charged a crime greater than the crime supported by the facts recited in the defendants guilty plea statement.12
In contrast, DeRosia‘s Alford plea statement provides no factual basis for any crime—not the crime charged, a more severe crime, or even a lesser crime. Rather, the State charged, and DeRosia pleaded guilty to, felony murder predicated on assault, a crime that the Supreme Court subsequently held factually unsupportable and unlawful. Andress, supra.
The amended information charged DeRosia with second degree felony murder, alleging the following elements:
[W]hile committing or attempting to commit the crime of Assault of a Child in the Second Degree, and in the course of and furtherance of said crime or in immediate flight therefrom, [DeRosia] did cause the death of L.D.S. (male, dob: 7/29/99) . . . to wit: . . . did intentionally assault L.D.S.... and did thereby recklessly inflict substantial bodily harm . . . thereby causing the death of L.D.S .... in violation of
RCW 9A.32.050(1)(b) and9A.36.130(1)(a) .
CP at 5 (emphasis added).
According to the Supreme Court‘s Andress decision, the information here misstated the
B. No “technical defect”
Third, the Supreme Court viewed the defective information in Majors as a mere “technical defect” because Majors had plainly been in jeopardy of charges and penalties more severe than those to which he pleaded guilty.13 In contrast, having received no plea bargain, DeRosia was in the same jeopardy both before and after his guilty plea.
That DeRosia was charged, convicted, and sentenced for a more severe offense than the facts could lawfully support, under Andress, is not a mere “technical defect.” As the Majors Court suggested, its “benefit of the bargain” analysis does not apply where, as here, “the questions raised are of ‘large importance‘, that the need for the remedy sought is apparent, and that the offense charged was one of which the sentencing court manifestly had no jurisdiction.” Majors, 94 Wash.2d at 358, 616 P.2d 1237 (quoting Keto v. United States, 189 F.2d 247, 251 (8th Cir.1951).) At least with respect to cases on direct appeal, Andress deprives sentencing courts of subject matter jurisdiction to enter judgment and sentence for second degree felony murder convictions predicated on assault.
We hold, therefore, that Majors is inapplicable here and that DeRosia did not waive his right to appeal his Alford guilty plea to a charge subsequently held unlawful under Andress. We now address the appropriate remedy.
II. REMEDY
DeRosia argues that Andress compels reversal of his conviction because he pled guilty to a charge that “no longer exists.” The State counters that we should deny DeRosia the benefit of Andress by overruling it, limiting its reach to assaults on adults (and not children), or applying it only to cases already in trial on or after the Andress decision issued. Noting our lack of power to overrule a Supreme Court decision, we previously rejected this argument in State v. Hughes, 118 Wash.App. 713, 77 P.3d 681 (2003), review denied, 151 Wash.2d 1039, 95 P.3d 758 (2004). Therefore, we turn to the remaining issues.
A. Andress
The Andress court‘s rationale does not support a distinction based on the age of the victim. Rather, the Court‘s rationale applies equally to child and adult assaults. The State conceded at oral argument that, as a result of Andress, DeRosia‘s plea cannot stand, regardless of the victim‘s age. And we have previously held that Andress applies to child assault. State v. Madarash, 116 Wash.App. 500, 516, 66 P.3d 682 (2003) (reversing second degree felony murder bench trial conviction predicated on third degree child assault, but affirming conviction for homicide by abuse of a four-year-old child).
A year ago we held that Andress “applies to all cases pending direct review at the time the rule is announced.” State v. Gamble, 118 Wash.App. 332, 335, 72 P.3d 1139, review granted, 118 Wash.App. 332, 72 P.3d 1139 (2003). This year, our Supreme Court reached the same conclusion, holding that ”Andress applies prospectively to include cases not yet final when the Andress decision was decided.”14 State v. Hanson, 151 Wash.2d 783, 791, 91 P.3d 888 (2004). Because DeRosia‘s conviction was not yet
Although Andress suggests reversal, it does not directly address its holding‘s application to a felony murder-assault conviction based on a guilty plea, especially an Alford plea. Thus, we must resolve this issue of first impression.
B. Voluntariness and Intelligence of Plea
DeRosia argues that we must allow him to withdraw his plea in order to correct a manifest injustice. “If the plea was not valid when entered, the trial court must set it aside regardless of ‘manifest injustice.‘” State v. McDermond, 112 Wash.App. 239, 243, 47 P.3d 600 (2002). We agree.
Due process requires that a guilty plea be voluntary, knowing, and intelligent. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). A guilty plea cannot be knowing and intelligent when the defendant has been misinformed about the elements of the offense.15 Moreover, a defendant must understand that his alleged criminal conduct satisfies those elements.16 Without an accurate understanding of the relation of the facts to the law, a defendant is unable to evaluate the strength of the State‘s case and, thus, to enter a knowing and intelligent guilty plea.17
Here, because DeRosia did not know that assault could not serve as the predicate felony for second degree felony murder, he could not knowingly and intelligently appraise the State‘s evidence against him. He entered his guilty plea under the mistaken assumption (shared by all parties) that assault could serve as the predicate felony for second degree felony murder. Thus, Andress compels us to set aside his plea, unless we determine that by pleading guilty, DeRosia waived his right to challenge the conviction, or unless he can be resentenced for a lesser included offense based on his statement on plea of guilty.18
C. Resentencing for Lesser Included Offense
Although Andress compels vacation of DeRosia‘s felony murder conviction, we next determine whether DeRosia can be resentenced for first degree manslaughter, a potential lesser included offense under the facts here.
As noted above, at the time he pled guilty, DeRosia did not understand the elements of second degree felony murder as the Supreme Court would later construe them in Andress. The Sixth Amendment to the U.S. Constitution and Article I, § 22 of the Washington Constitution guarantee “a defendant has the right to be informed of the charges against him and to be tried only for offenses charged.” State v. Peterson, 133 Wash.2d 885, 889, 948 P.2d 381 (1997). The essential purpose of the notice requirement is to ensure that a defendant can mount an effective defense. State v. Schaffer, 120 Wash.2d 616, 845 P.2d 281 (1993).
But there are “two recognized exceptions to this rule, exceptions for lesser
We held last year that a person whose second degree felony murder jury conviction was vacated under Andress could be resentenced for first degree manslaughter where the predicate assault charged a violation of
If we apply the logic of Gamble to guilty pleas, a defendant may be held to his plea and resentenced for a lesser offense, so long as the defective information provides notice of the elements of the lesser offense. Here, even assuming, without deciding, that the information provided DeRosia with notice of elements of a lesser included offense, such as manslaughter, we must resolve an additional issue: Although resentencing for a lesser included offense is an appropriate remedy following vacation of a jury conviction for felony murder, the same logic does not automatically apply to an Alford guilty plea.
Key issues pertaining to the resentencing remedy following a jury trial include: (1) whether the jury necessarily found the elements of the lesser included offense; and (2) whether the charges, although defective, imparted constitutionally adequate notice to the defendant. State v. Berlin, 133 Wash.2d 541, 545, 947 P.2d 700 (1997). The notice requirement is constitutionally adequate in the trial context because the second degree felony murder charge imparts notice that the defendant is in jeopardy of conviction for all lesser included offenses. Berlin, 133 Wash.2d at 548, 947 P.2d 700. In the trial context, where the defendant has enjoyed the full panoply of constitutional rights, nothing more is required, and we may rely on the factual findings of the jury, regardless of whether the information was defective when entered.
In contrast, a defendant generally cannot challenge his factual guilt after entering a guilty plea. A defendant‘s admission of guilt is deemed so reliable that it serves as a proxy for a jury‘s determination that he is guilty beyond a reasonable doubt. But an Alford plea typically contains no such admission of factual guilt by the defendant.
The record here, for example, contains no guilty admissions of fact by DeRosia. Moreover, because there was no trial and no recitation of facts that DeRosia admitted in his Alford plea, there is no factual basis to support a conviction for any lesser included offense like first degree manslaughter.22 In light of our view that DeRosia‘s Alford plea admitted no factual guilt, the manslaughter resentencing remedy we announced in Gamble does not apply here.
We hold that in entering an Alford plea to second degree felony murder predicated on second degree child assault, (1) in light of Andress, DeRosia did not waive his right to challenge his conviction on appeal; and (2) even though the facts the State alleged in the information would likely support first degree manslaughter, the lack of a
D. Refiling of Charges
As its final alternative, the State argues that if we reverse and set aside DeRosia‘s plea, we should remand without prejudice to the State‘s ability to re-file charges. We agree.
Our Supreme Court directs that “[t]he proper remedy for a conviction based on a defective information is dismissal without prejudice to the State refiling the information.” Thompson, 141 Wash.2d at 725, 10 P.3d 380 (quoting State v. Vangerpen, 125 Wash.2d 782, 793, 888 P.2d 1177 (1995) (quoting State v. Simon, 120 Wash.2d 196, 199, 840 P.2d 172 (1992))). Accordingly, we vacate DeRosia‘s conviction and remand without prejudice to the State‘s refiling any lawful charge, including first degree manslaughter.
III. EXCEPTIONAL SENTENCE
Finally, DeRosia argues that the trial court erred by imposing an exceptional sentence based on his abuse of a position of trust and the particular vulnerability of the victim. Since the parties filed their briefs in this case, the United States Supreme Court issued Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), holding that a jury, not a judge, must decide aggravating facts that could give rise to an exceptional sentence.
In light of our reversal of DeRosia‘s conviction and the necessity of remand for possible recharging and resentencing, we do not address this issue further.
Reversed and remanded to allow DeRosia to withdraw his guilty plea without prejudice to the State‘s ability to re-file amended charges.
We concur: HOUGHTON, J., and QUINN-BRINTNALL, C.J.
Notes
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 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 twice convicted, 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 a state correctional facility for not less than ten years.
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 convicted, 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 punished by imprisonment in a state correctional facility for life.
This section is inapplicable to felonies committed on or after July 1, 1984. See