Opinion
No. 29100-6-III.
Filed September 15, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 10-1-00019-1, Donald W. Schacht, J., entered April 12, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Sweeney and Brown, JJ.
Samuel Johnson seeks to withdraw an Alford plea to charges of residential burglary and fourth degree assault (domestic violence), arguing that he was not informed of potential consequences of the domestic violence designation of the assault charge. He also argues that reversal of his conviction is required because the definition of "family or household member" in the domestic violence act, chapter 10.99 RCW, is unconstitutionally vague. We find no constitutional deprivation or infirmity and affirm.
North Carolina v. Alford, 400 U.S. 25, 36-37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
FACTS AND PROCEDURAL BACKGROUND
Samuel Johnson was charged with residential burglary, harassment (domestic violence), and fourth degree assault (domestic violence) based on allegations that he forced his way into his brother's home, exclaimed "`kill me before I kill you,'" and then assaulted him. Clerk's Papers (CP) at 5. As a condition of his pretrial release, he was ordered to have "absolutely no contact" with his brother and, when asked if there was any reason for him to have such contact, answered, "None at all, none." Report of Proceedings (RP) at 3, 6.
Mr. Johnson entered an Alford plea, in exchange for which the State dismissed the harassment charge and recommended a sentence of the low end of the standard range for the residential burglary count and that any balance be converted to work crew or partial confinement. The statement on plea of guilty that he signed disclosed to him that the assault charge carried a term of community custody of up to 24 months. It disclosed that during the period of community custody, "I will have restrictions and requirements placed upon me." CP at 12. On the last page of the statement, Mr. Johnson signed his name beneath the representation "[m]y lawyer has explained to me, and we have fully discussed, all of the above paragraphs. . . . I understand them all. . . . I have no further questions to ask the judge." CP at 17. At the time the trial court accepted the plea, it inquired, and Mr. Johnson confirmed, that he had no difficulty reading, writing, or understanding English; had read the statement of plea; had gone over it with his lawyer; understood it; and had no questions about it. RP at 18. The trial court inquired, and Mr. Johnson confirmed that he understood there was a range of 24 months' community custody for the assault charge. RP at 19-20. The trial court explained, and Mr. Johnson confirmed that he understood that if placed on probation, "there may be certain conditions you would have to comply with, such as reporting to a probation officer, obeying the law, making financial payments, participating in a treatment program[], those types of things." RP at 21. After accepting the plea, the trial court sentenced Mr. Johnson to 180 days of total confinement and 12 months of community custody. It also informed him he would have to comply with a one-year protection order, to which Mr. Johnson did not object, and which he signed. RP at 34-35.
Notwithstanding his Alford plea, Mr. Johnson timely appealed.
ANALYSIS I
Mr. Johnson's first challenge on appeal is to the voluntariness of his plea. It is a violation of due process to accept a guilty plea without an affirmative showing that the plea was made intelligently and voluntarily. State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980) (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). In addition to the minimum requirements imposed by the constitution, criminal pleas are governed by CrR 4.2, which establishes requirements beyond the constitutional minimum, including that the court determine that the plea is made "with an understanding of the nature of the charge and the consequences of the plea." Id.; CrR 4.2(d). Either the record of the plea hearing or clear and convincing extrinsic evidence must affirmatively disclose that a guilty plea was made with an understanding of the full consequences of the plea. Barton, 93 Wn.2d at 304 (citing Wood v. Morris, 87 Wn.2d 501, 554 P.2d 1032 (1976)).
The requirement that a defendant be informed of the consequences of the plea requires that he be informed of all the direct consequences of his plea prior to its being accepted; he need not be advised of all possible collateral consequences. Id. at 305 (citing Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364 (4th Cir. 1973)). The distinction between direct and collateral consequences of a plea "`turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Id. (quoting Cuthrell, 475 F.2d at 1366).
There is a strong public interest in enforcement of plea agreements that are voluntarily and intelligently made. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). Nonetheless, "[t]he court shall allow a defendant to withdraw [his] plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f). The manifest injustice requirement is a demanding standard, but is met where it is established that a defendant failed to understand the consequences of his plea. Barton, 93 Wn.2d at 306 (citing State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974)).
A claim that the defendant failed to understand the consequences of his plea involves an issue of constitutional magnitude that may be raised for the first time on appeal. State v. Mendoza, 157 Wn.2d 582, 589, 141 P.3d 49 (2006) (citing Walsh, 143 Wn.2d at 7-8).
Mr. Johnson first argues that he should have been warned that "a domestic violence-related conviction results in a no contact order being imposed." Br. of Appellant at 3. He offers no authority that a no contact order is a direct consequence of a plea to an assault involving domestic violence other than to invite us to compare State v. Wilson, 117 Wn. App. 1, 11, 75 P.3d 573 (2003), in which the court observed that the offender had been advised of "the direct consequences of his plea . . . and that the prosecutor would recommend no contact with the victim" (emphasis added) — an observation that does not help Mr. Johnson. The authority for the no contact order entered by the trial court was RCW 9.94A.703(3)(b), which identifies requirements that shall or may be imposed as conditions of community custody and includes "refrain[ing] from direct or indirect contact with the victim of the crime" as a discretionary condition. Before his plea was accepted, Mr. Johnson was advised and acknowledged that he could be sentenced to as much as 24 months' community custody, during which restrictions and conditions could be imposed. At the time of entering his Alford plea, an order of protection was only a possibility. A discretionary condition of community custody is not definite and automatic.
Mr. Johnson also argues that "a domestic-violence designation on a conviction is given special consideration that can affect a defendant at sentencing, it can result in increased penalties for other violations and it can result in loss of early release time" and "[f]urthermore, the defendant could be subjected to electronic home monitoring as a result of the no contact order at his own expense." Br. of Appellant at 3-4 (citing RCW 10.99.040(3); RCW 10.99.[100] (factors to be considered in sentencing for a crime of domestic violence); State v. O.P., 103 Wn. App. 889, 892, 13 P.3d 1111 (2000); RCW 10.99.040(4)(b) and RCW 26.50.110, which he characterizes as providing for elevated punishments; and RCW 9.94A.729 (providing for early release time)). We agree with the State that Mr. Johnson's choice of language — that his plea "can" or "could" have the complained-of consequences — itself signals that the consequences are not definite or automatic. Review of the statutes he relies on bears this out.
In adopting the domestic violence act, the legislature explicitly found that "existing criminal statutes are adequate to provide protection for victims of domestic violence." RCW 10.99.010. Not surprisingly, then, the sentencing factors identified in RCW 10.99.100 do not address the range of an offender's punishment. O.P., relied upon by Mr. Johnson, recognizes that the domestic violence act "`created no new crimes but rather emphasized the need to enforce existing criminal statutes in an evenhanded mannerto protect the victim regardless of whether the victim was involved in a relationship with the aggressor.'" 103 Wn. App. at 892 (quoting Roy v. City of Everett, 118 Wn.2d 352, 358, 823 P.2d 1084 (1992)). While the decision in O.P. recognizes that the violation of a domestic violence order of protection has more severe consequences than violation of a sentencing condition restricting contact in a case not involving domestic violence, it was the trial court's discretionary choice to restrict contact, not Mr. Johnson's plea to the domestic violence crime, that results in that consequence. And here, the domestic violence protection order entered by the court restrains Mr. Johnson only from "causing physical harm, bodily injury, assault, including sexual assault, and from molesting, harassing, threatening, or stalking" his brother, a restriction that falls within the conditions and consequences of which he was warned. CP at 34-35. In its oral ruling, the court advised Mr. Johnson of "certain conditions you would have to comply with, such as . . . obeying the law." RP at 21.
RCW 10.99.040 deals only with pretrial no contact orders, not protection orders imposed as a condition of sentencing; its electronic monitoring provision (at subsection (3)) creates authority for pretrial electronic monitoring and assessment of the cost of monitoring in the event of conviction, but no other consequence upon or following conviction. The no contact order entered in connection with Mr. Johnson's pretrial release (of which he was aware and to which he voiced no objection) has no bearing on the requirement that he understand the consequences of his plea. There is no suggestion that Mr. Johnson was subjected to electronic monitoring prior to entering his Alford plea, and the judgment and sentence imposed no cost of monitoring.
Finally, the maximum aggregate early release time that an offender confined pursuant to a felony may earn is affected by a domestic violence designation, RCW 9.94A.729(3)(c)(ii)(D), but the domestic violence assault to which Mr. Johnson pleaded was a misdemeanor. Mr. Johnson has failed to demonstrate any direct, immediate, and automatic result of his plea as to which he was not fully informed.
II
Mr. Johnson next argues that the definition of "family or household member" in the domestic violence act is unconstitutionally vague. An assault constitutes "domestic violence" when it is committed by one family or household member against another. RCW 10.99.020(5). "Family or household members" is defined to mean spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.
The constitutionality of a statute is an issue of law, which we review de novo. Kitsap Cnty. v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P.3d 1280 (2005). A defendant challenging a statute as unconstitutionally vague must show, beyond a reasonable doubt, that either (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) does not provide ascertainable standards of guilt to protect against arbitrary enforcement. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).
The State argues that because the domestic violence statute does not alter the elements of the offense, it is not a penal statute and is not subject to a vagueness challenge. The rationale behind the vagueness doctrine is to ensure that criminal statutes are specific enough that citizens have fair notice of what conduct is proscribed. The domestic violence act does not criminalize any conduct. State v. Goodman, 108 Wn. App. 355, 359, 30 P.3d 516 (2001); O.P., 103 Wn. App. at 892 (quoting Roy, 118 Wn.2d at 358).
Generally, the void for vagueness doctrine does not apply to a sentencing scheme. State v. Baldwin, 150 Wn.2d 448, 458-59, 78 P.3d 1005 (2003). It has application only to laws that proscribe or prescribe conduct; it is analytically unsound to apply the doctrine to laws that merely provide directives that judges should consider when imposing sentences. Id. at 458 (quoting State v. Jacobson, 92 Wn. App. 958, 966-67, 965 P.2d 1140 (1998)). The statutes that proscribe the conduct for which Mr. Johnson was sentenced are RCW 9A.52.025 (residential burglary) and RCW 9A.36.041 (fourth degree assault). He does not challenge either as unconstitutionally vague.
Nor has Mr. Johnson persuaded us that the definition of "family or household member" is vague. It is unquestionably broad. But we disagree with Mr. Johnson's suggestion that, by including "adult persons related by blood," the definition "may include siblings or it may not." Br. of Appellant at 6. The plain meaning of "adult persons related by blood" includes siblings as well as more remote relatives having a common ancestor. When interpreting a statute, our fundamental objective is to ascertain and carry out the legislative intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). The purpose of the domestic violence act is to address previous societal attitudes that sometimes resulted in violent behavior among family or household members being excused or tolerated by law enforcement. See RCW 10.99.010. That purpose reasonably extends to blood relatives, even if remote, whose intrafamily violence might be dismissed or discounted by law enforcement as "a family dispute." Mr. Johnson has not presented any reason why, in this context, differing degrees of consanguinity create ambiguity.
We affirm the judgment and sentence.
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.
SWEENEY, J. and BROWN, J., concur.