*1 petitioner lied prosecutor in a engaged game of deceiving prosecutor as to his light record, activities. In of this assuming arguendo prosecutorial must use discretion informations, habitual criminal it appears to me that he has abused his discretion if he fails to file the habitual criminal information under these circumstances. petitioner
The record shows that has not been reha- by prior imposed bilitated sentences for his felonies. affirm. I would J.,
Wright, J. Rosellini, concurs with April 46313. En Banc.
[No. 1980.] Respondent, v. Rick The State Washington, Petitioner. Rinier, Gene *2 petitioner (appointed Joseph Mano, Jr., counsel for M. appeal). for Attorney, respon- Prosecuting Panesko, Jr.,
John dent.
^11 J. Defendant Rinier was an adjudicated Dolliver, habitual offender and sentenced to imprisonment. life He on appeals finding ground three his four prior convictions improperly were admitted into evidence the habitual proceeding. guilty pleas County, Lewis Wash- 1, 1978, on
ington, February charges motor taking a vehicle without and assault in the second degree. pleas accepted, After prosecuting were attorney a supplemental filed sentencing alleg- ing that defendant an habitual offender RCW under 9.92.090. Defendant waived his to a on jury trial supplemental sentencing information.
The State introduced various to prove exhibits defendant had felonies, been convicted of following four all committed in Oregon: two convictions for the unautho- rized 1, 1974, use a vehicle on August County, in Linn Oregon; one conviction for burglary the first February 1976, in Linn County, Oregon; and one con- *3 viction for escape in 14, 1977, in degree on April County, Marion Oregon.
Defendant objected to the introduction 1 of exhibits 3 offered prove State to that he had two convictions for unauthorized use of a motor vehicle. The district attor- ney's in each exhibit alleged that defendant "did unlawfully knowingly . . take vehicle . without the consent of the . . . contrary owner in to the Statutes (Italics ours.) such cases provided." made and The defendant objected also to the of introduction exhibit 7 prove offered to that defendant was convicted of escape in the second degree. on journal entry conviction provided, in part: day
On 1977, this 14th of April, coming this matter . be heard . . in appearing person defendant [and] and without . benefit of . . counsel is defendant advised of to court appointed right; counsel and waives pleads Guilty, rights advised and Plea of Guilty . . . of 312
(Italics ours.) above Exhibit 7. Each exhibits The objections. admitted into evidence over defendant's court, 7, also included exhibit stated judgment mention had waived counsel but did not that defendant rights. waiver of defendant's other constitutional The trial court defendant an habitual criminal adjudged him to Court of imprisonment. and sentenced life Rinier, v. affirmed. State Wn. Appeals App. P.2d 43 offender under
Defendant was found to an habitual be provides, part: RCW 9.92.090 which any crime of Every person convicted in state this element, petit or of which fraud or intent larceny, to defraud anis any felony, previously or of who shall have been convicted, elsewhere, any or twice whether this state would amount which under the laws this state crime felony, to a four previously or who have been times shall elsewhere, convicted, petit or lar- this state or ceny, any gross misdemeanor or misdemeanor element, is an which fraud or intent to defraud shall penitentiary state punished by imprisonment life. ours.)
(Italics
convictions for
prior Oregon
contends the
on the
use of a
were inadmissible
unauthorized
felony convictions
do
grounds
they
not constitute
determining the
of this
The test for
under the laws
state.
is whether
sufficiency of an out-of-state
conviction
con
or
which defendant was
indictment
information under
facts sufficient
foreign jurisdiction
in a
stated
victed
felony Washing
minimum
of a
amount
elements
Furth,
State
(1940);
v.
ton. State
deemed of a untarily in or riding said upon automobile or motor with knowledge the same was fact unlawfully taken shall equally guilty with the person taking driving or or said automobile motor vehicle and shall be guilty taking deemed a motor vehicle without permission.
(2) Taking a motor vehicle without is a felony. C class
(Italics ours.) Defendant "knowingly contends take" satisfy does not "intentionally the element of take" Washington statute. Washington Both Oregon distinguish statutes from intent RCW knowledge. 9A.08- .010; 161.085(7), Ore. Rev. Stat. RCW 9A.08.010 cate- gorizes degrees of culpability as follows:
(a) Intent. A person acts or intentionally with intent when he acts with the or objective purpose accomplish a result which constitutes crime. (b) Knowledge. person or knowingly knows acts or with knowledge when:
(i) fact, facts, he is aware of a or circumstances or result by described defining offense; a statute an or (ii) he has would lead a reasonable man the same situation to believe that facts exist which facts are described a statute an defining offense. 9A.08.010(1). RCW Acting intentionally is a higher of culpability acting knowingly. than
Nevertheless, Oregon information is sufficient constitute the crime riding in a motor vehicle without permission under portion RCW 9A.56.070. passenger Either a or may violate the second taker/driver Robinson, portion statute. Jones,
475 P.2d Wn.2d *5 314 Scott, v. State (1964); P.2d 395 377
P.2d 815 (1964). Thus, by provides two methods RCW 9A.56.070 Medley, v. State may single crime be committed. a denied, review 524 P.2d App. 11 Wn. however, that, passenger if even the argues, used, can be the statute still of RCW 9A.56.070 section vehicle knowledge must the requires passenger that a have is not that a vehicle unlawfully taken. He asserts intentionally that taken and unlawfully taken unless it can be satisfied statute portion Washington of the neither for taking "knowingly". his conviction by courts Washington the require construction would This the riding in a car which passenger whether a to determine by knew whether knew to stolen another also passenger be the "intentionally". While "knowingly" car was taken or the the ingenious, it would vitiate argument of a passenger a or part of RCW 9A.56.070 both as to second We construction reject this disharmonious passenger/driver. be passenger to hold that and decline of the statute distinctions as to be these technical required aware Rather, with culpability. agree mental we the taker's defendant, or pas- driver and hold that Appeals Court portion passenger may be convicted under senger, knowledge if the defendant had RCW 9A.56.070 permission. the owner's taken without vehicle was statute claim- escape cannot from the driver/passenger without if vehicle was taken of intent he knows the ing lack pos- or entitled person of the owner vehicle. session knowingly taking two convictions for
Defendant's minimum in are sufficient to meet Oregon permis without riding a motor vehicle requirements 9A.56.070; properly convictions were sion under RCW admitted into evidence proceeding. criminal the habitual noted, however, con It where there are two should felony day, only this one victions same constitutes v. State purposes for the of the habitual criminal statute. 3^5 Jones, Brezillac, Wash. 244 P. Wn. App. challenges
Next defendant admission guilty plea the offense of as embodied exhibit 7. Court of Appeals categorized as a collateral on prior guilty this attack plea and held the out-of-state presumed conviction was valid.
Rinier, supra
However,
at 105.
an attack on
the use
guilty plea
an habitual
proceeding
is neither
*6
nor
collateral
retroactive.
"The
challenge instead
present use of
present
plea
an invalid
sen
a
criminal
Holsworth,
State v.
tencing
process."
148, 154,
Wn.2d
93
(1980).
sufficient of knowing a and voluntary of waiver his constitutional rights. The United Supreme States Court Boykin Alabama, v. 238, 274, 395 U.S. 23 L. Ed. 2d 89 S. (1969) Ct. 1709 set forth three constitutional rights waived a when defendant plea guilty enters in a state criminal (1) trial: against (2) The privilege self-incrimination; right jury trial; (3) to a and to confront one's accusers. waiver rights of these will not presumed be from a silent record.
While record, nevertheless, exhibit is not a silent it only contains the blanket statement that defendant was "advised rights of his plea guilty and Fur was entered". thermore, journal entry neither the nor judgment shows that defendant made knowing and intelligent waiver of specific the three Boy constitutional rights enumerated kin. Boykin
Even though
neither
nor the constitution forbids
record,
the use of extrinsic
to
evidence
we
supplement
court. Wood v.
have
governed by
held this issue is
rules of
Morris,
501,
CrR
Wn.2d
was 1977. The of Wood v. September the date pleas entered after Morris, supra, must be demonstrated on the record. was "advised statement that defendant
The blanket constitutionally guilty was entered" rights plea may not be used since evidence insufficient and extrinsic in the defect, may the conviction not be used correct proceeding. habitual criminal to be with two convictions
This defendant leaves for unau- proceeding, criminal one included in the habitual in the first burglary use of a vehicle and one for thorized 9.92.090, may be declared RCW degree. Under felony convic- previous offender if he has two an habitual tions.
Nevertheless,
this case must
remanded
proceeding
court. At the time the habitual
trial
mandatory policy
filed,
County
Lewis
had
automatically
three or more
when
proceedings
*7
State v.
record.
felonies
on a defendant's
prior
existed
v. Bar
State
Pettitt,
Wn.2d
609 P.2d
ton,
violates the
This
fil
in
prosecutorial discretion
that
constitutional mandate
require
the
proceeding must meet
ing an
habitual
Pettitt,
supra;
State v.
process.
due
procedural
ments
Gilcrist,
This
We remand case discretion to determine attorney appropriate to use proceedings against whether should be filed defendant.
Utter, C.J., Brachtenbach, Horowitz, Hicks, and Williams, JJ., concur.
Rosellini, J. in (dissenting) concur majority the — I opinion holding that felony there are two valid con- purpose victions for the of declaring the defendant a habit- ual I part opinion offender. dissent to that prosecutor that holds required exercise his discre- tion in a habitual criminal information. Pettitt, State v. my
See
dissent
(1980),
In the defendant this request case did not either his petition for or in review his argument on the merits that the case should be remanded. petition for review which granted was two (1)
issues: Oregon Does conviction offense of unau- thorized use of a vehicle constitute a felony conviction of a (2) under the laws of Washington? Does the record of guilty plea and conviction of Oregon offense of second as embodied exhibit 7 reflect a sufficient showing and vol- knowing untary waiver of the defendant's guaranty? constitutional
The brief of the only addresses the above issues and does not suggest the matter should be remanded on the habitual criminal charge. case,
The majority sponte sua remands without dis- cussion prosecutor violated his discretion filing the habitual criminal evidently information. It is felt Pettitt, procedure this required under supra. record,
On this if the rule prosecutor is that must discretion, would have abused exercise then the he had charge. discretion to so if failed *8 County charged in with The Lewis (count 1), degree escape of and assault crime the second (count 2). charged degree He was another in the second (count 1), degree burglary in with information (count 2), degree in the theft the first theft second (count 3), by possession pistol degree of a a and unlawful (count 4). felon plea guilty to the crimes of
The defendant a taking vehicle without the owner's a motor degree. charges All were second other dis- assault plea guilty full with the under- missed. The was entered supplemental standing would file a the State sentencing alleging habitual criminal status. the record. The trial court found that the
Let us examine following previously convicted defendant had been (1) August 1, vehicle on unauthorized use felonies: (2) County, Oregon; 1974, in use of a Linn unauthorized (3) County, August Oregon; 1, 1974, in Linn on February burglary degree 19, 1976, Linn on the first (4) County, Oregon; in the second on County, Oregon. April 14, 1977, in Marion majority was constitution- The finds the defendant ally to invoke the habitual convicted of two felonies criminal statute. pleaded
Although to which the defendant the crimes purpose guilty for the cannot be considered they information, criminal can be considered prosecutor deciding he should file the when whether alleged charge. acts He has a to consider also information, formed the basis plea although were dismissed the defendant's some guilty. all the criminal can determine from activity or not he is an individual the defendant imprisoned period protect of time who must society proclivity of crimes the commission from his toward persons. against property and *9 circumstances,
Under would have if abused his discretion he failed to had file charge. I would affirm. J., Rosellini, J.
Wright, with concurs J., Stafford, concurs the result. 24, 1980.] En April 45005. Banc.
[No. Appellant, Chrysler Seay, Elwood Respondent. Corporation,