Opinion
No. 52137-3-I.
Filed: April 17, 2006.
Appeal from Superior Court of King County. Docket No: 97-1-02033-2. Judgment or order under review. Date filed: 01/01/1800.
Counsel for Petitioner(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Jonathan Anthony Rushing (Appearing Pro Se), #752279, Washington State Penitentiary, 1313 N 13th Ave, Walla Walla, WA 99362.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
UNPUBLISHED OPINION
Jonathan Rushing pled guilty to the second degree intentional and felony murder of Angow Ayele, as charged in the alternative. After the decision in In re Personal Restraint of Andress, Rushing filed a personal restraint petition challenging the conviction, arguing it is contrary to law and violates due process under Andress and In re Personal Restraint of Hinton. To the extent Rushing's second degree conviction was based on his plea to felony murder under former RCW 9A.32.050 (1)(b), it is invalid under the holdings in Andress and Hinton. But because Rushing was charged with and pled guilty to intentional murder, his conviction still stands. As we held in In re Personal Restraint of Fuamaila, Rushing's 1997 judgment and sentence is valid on its face, and his collateral attack on it is time barred under RCW 10.73.090 (1).
147 Wn.2d 602, 56 P.3d 981 (2002), superseded by statute, RCW 9A.32.050 (2005), as recognized in State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005).
Rushing was serving his sentence when the Washington Supreme Court decided Andress.
152 Wn.2d 853, 100 P.3d 801 (2004).
No. 53698-2-I (Wash.Ct.App. Mar. 13, 2006).
FACTS
On August 5, 1997, Jonathan Rushing pled guilty to the second degree murder of Angow Ayele as charged in the Second Amended Information, which read:
I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington do accuse JOHNATHAN [sic] RUSHING of the crime of Murder in the Second-Degree, committed as follows:
That the defendant JOHNATHAN [sic] RUSHING in King County, Washington, on or about March 17, 1997, while committing and attempting to commit the crime of Assault in the Second-Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, and with intent to cause the death of another person, did cause the death of Angow Ayele, a human being, who was not a participant in said crime, and who died on or about March 17, 1997;
Contrary to RCW 9A.32.050(1)(a) and (b). . . .
(Emphasis omitted.)
In his statement on plea of guilty, Rushing stated he had been fully informed, understood the charges, and pled guilty freely and voluntarily. He also gave the following statement:
On March 17th, 1997, I got into a fight with Angow Ayele. And while pointing a gun at him, I shot and killed him. Although I was acting in self-defense, the force used was not reasonable and was excessive. I understand it is not a defense.
. . . I admit to possessing a firearm unlawfully on March 17th, 1997. . . .
At the plea hearing, the State reviewed all of the elements of the murder charge with Rushing and told the court that, in exchange for the plea, it would not file additional charges against Rushing and would dismiss the firearm enhancement. The State also incorporated the certification and supplemental certification for determination of probable cause into the plea agreement. Rushing's counsel stated that he had fully prepared Rushing's case for trial and had advised his client about the advantages and disadvantages of a plea and proceeding to trial. After the colloquy, the trial court accepted Rushing's guilty plea, finding it was knowing, voluntary, intelligent and supported by the facts in the record. Rushing filed this petition on April 5, 2003, after the Supreme Court issued its decision in Andress, and we stayed the matter pending Hinton. In Hinton, the Supreme Court held that Andress applied retroactively, thus invalidating all convictions for felony murder that were predicated on assault. We then lifted the stay and appointed counsel to represent Rushing on the Andress and Hinton issues.
152 Wn.2d 853,861,100 P.3d 801 (2004).
DISCUSSION
To obtain relief, Rushing must first overcome statutory and procedural bars to his personal restraint petition. Under RCW 10.73.090 (1), a one year time bar applies to all collateral attacks on final judgments that are valid on their face and rendered by a court of competent jurisdiction. To avoid the one year time bar, a petitioner must show the judgment and sentence is invalid on its face under RCW 10.43.090(1) or an exception applies under RCW 10.73.100 . When "the judgment and sentence evidences the invalidity without further elaboration," it is invalid on its face. Documents incorporated into a plea agreement may be used to determine the facial validity of the judgment and sentence.
RCW 10.73.090; RAP 16.4 (RAP 16.4 incorporates the requirements of RCW 10.73.090).
'No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.' RCW 10.73.090 (1).
In re Pers. Restraint of Turay,150 Wn.2d 71, 82, 74 P.3d 1194 (2003), cert. denied, 125 S. Ct. 1704 (2005).
In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 532, 55 P.3d 615 (2002) (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866-67, 50 P.3d 618 (2002)).
Id. at 532-33.
I. RCW 10.73.090
First, we reject Rushing's argument that he intended to plead guilty only to felony murder. Intentional murder and felony murder are not separate crimes but are instead alternate ways to commit the single crime of second degree murder. When there are two or more alternative ways to commit a crime, the State may charge both alternatives in the same count. A defendant has no right to plead guilty to only one alternative means.
RCW 9A.32.150(1)(a) and (b); see State v. Johnson, 113 Wn. App. 482, 487, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1016 (2003).
State v. Scott, 64 Wn.2d 992, 993, 395 P.2d 377 (1964).
State v. Bowerman, 115 Wn.2d 794, 801, 802 P.2d 116 (1990).
In State v. Bowerman, the State charged the defendant by amended information with the crime of first degree murder based on two alternative means: aggravated premeditated murder and felony murder. The court rejected Bowerman's argument that she had a statutory right to plead guilty to only the felony murder alternative because "[w]here an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged."
115 Wn.2d 794, 797, 802 P.2d 116 (1990).
Id. at 801.
We recently decided Fuamaila, where the defendant was charged with second degree murder under both RCW 9A.32.050 (1)(a) and (b) and pled guilty "as charged." We rejected the argument Rushing makes here that he intended to plead guilty to only second degree felony murder and not intentional second degree murder. Fuamaila confirmed that he had received the third amended information on which his plea was based and acknowledged in his plea that he was charged in the alternative. At the beginning of the plea colloquy, Fuamaila said he understood his rights, the elements of the charge against him, and the consequences of his plea. Further, his description of the crime in the plea statement was consistent with a plea to both intentional and felony murder. He stated, "I assaulted Victor Lindsey with a knife and he was killed by the knife during the assault."
No. 53698-2-I, slip op. at 5 (Wash.Ct.App. Mar. 13, 2006).
Id. at 12.
Id.
Id. at 6.
As in Fuamaila, the holdings in Andress and Hinton are not material to Rushing's guilty plea to the alternative means of second degree intentional murder. While his plea to the felony murder alternative under RCW 9A.32.050 (1)(b) is facially invalid after Andress and Hinton, Rushing's plea to intentional murder is not. As in Bowerman and Fuamaila, Rushing was properly charged in the alternative and pled guilty to a single charge based on two underlying theories, RCW 9A.32.050 (1)(a) and (b). He did not have a right to plead guilty to just one of the alternative means. His plea is valid on its face.
Id. at 10.
Id. at 15.
See id. at 8.
Bowerman, 115 Wn.2d at 799; see In re Pers. Restraint of Mayer, 128 Wn. App. 694, 117 P.3d 353 (2005) (a defendant does not have the right to plead guilty to just one alternative means); see also In re Fuamaila, No. 53698-2-I, (Wash.Ct.App. Mar. 13, 2006); State v. Duhaime, 29 Wn. App. 842, 854-55, 631 P.2d 964 (1981), review denied, 97 Wn.2d 1009 (1982).
Where the judgment and sentence is valid on its face, the one year time limit to file a personal restraint petition applies.
Turay, 150 Wn.2d at 74.
II. RCW 10.73.100
Unless Rushing can prove his personal restraint petition falls within an exception listed in RCW 10.73.100, his collateral attack on the judgment and sentence is time barred. RCW 10.73.100 lists several exceptions to the one year time bar, one of which is an intervening significant change in the law. Andress and Hinton are certainly "unexpected change[s] in long-standing decisional law," so we will address Rushing's substantive arguments.
The time limit specified in RCW does not apply to a petition . . .
[when]
. . . .
[t]here has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard. RCW 10.73.100 (6).
State v. Ramos, 124 Wn. App. 334, 336, 101 P.3d 872 (2004).
Although Rushing signed a plea statement acknowledging that he was pleading guilty as charged in the second amended information, he argues there was no factual basis for his plea to intentional murder and he did not knowingly or intelligently enter that plea.
Guilty pleas must satisfy the statutory requirements of CrR 4.2(d). To satisfy CrR 4.2(d), a trial court need not be convinced beyond a reasonable doubt that the defendant is guilty in order to find that there is a factual basis for the plea. Rather, there need only be sufficient evidence from which a jury could conclude that the defendant is guilty. The trial court is not limited to reviewing the defendant's statements, but may also rely on other documents in the record which the court finds reliable. These may include the information, certification for determination of probable cause, comments of defense counsel, and the prosecutor's factual statements.
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.
CrR 4.2(d).
State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505 (1991) (citing State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976)); see also In re Taylor, 31 Wn. App. 254, 640 P.2d 737 (1982) (requiring the facts be developed on the record at the plea hearing).
Newton, 87 Wn.2d at 370 .
In re Pers. Restraint of Keene, 95 Wn.2d 203, 210, 622 P.2d 360 (1980).
Newton, 87 Wn.2d at 370 .
Saas, 118 Wn.2d at 44 (citing State v. Osborne, 102 Wn.2d 87, 95, 684 P.2d 683 (1984)).
A constitutionally valid plea must be voluntary and intelligent. To be voluntary, a defendant must be informed of all direct consequences of his plea and understand the elements of the offense as well as the way the law relates to the facts. But a plea is presumed knowing and intelligent when a defendant receives a written copy of the information. Further, a strong presumption of voluntariness arises when a defendant has prepared a written statement and the trial court has inquired about the defendant's voluntariness and understanding of the charges against him.
Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).
State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996).
Keene, 95 Wn.2d at 209 .
Bousley v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (citing Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976)).
State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996) (citing State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982); see also In re Pers. Restraint of Benn, 134 Wn.2d 868, 923, 952 P.2d 116 (1998) ("understanding of the nature of the charge may be assumed from his representation by presumptively competent counsel") (quoting In re Pers. Restraint of Harris, 111 Wn.2d 691, 698, 763 P.2d 823 (1988), cert. denied, 490 U.S. 1075 (1989)).
As stated above, Rushing could not plead guilty to only one alternative means. He could do so only if the information referenced in the plea agreement had been amended to charge only one alternative. As in Fuamaila, the record establishes that Rushing understood he was pleading guilty to both felony murder and intentional murder. Further, his statement, the information, and the certification are all consistent with a plea of guilty to intentional murder. Nowhere does he deny intent to kill Ayele. Rather, he states that he pointed a gun at Ayele while in a fight and shot and killed him.
Rushing fails to meet his burden in a personal restraint petition. He cannot show by a preponderance of the evidence either that a constitutional error resulted in actual or substantial prejudice or nonconstitutional error resulted in a "complete miscarriage of justice." He argues there was no factual basis for his plea to and conviction of the alternative means of intentional murder. The test is whether there is sufficient evidence for a jury to conclude he was guilty of intentional murder. In his statement, Rushing said he pointed a gun at Ayele and fired it in self-defense. Admitting that he pointed and shot is enough for a jury to find that he intended to kill Ayele. And self-defense is a justification for this intentional act, not a denial of intent. In fact, the defense is not available for a felony murder charge, and Rushing's reliance on self-defense in his plea statement establishes that his plea was to intentional murder.
In re Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).
Id.
Rushing made his plea voluntarily and intelligently. He pled guilty in writing "as charged" to both alternative means. He was represented by competent counsel and agreed to the plea after successfully negotiating with the State not to file other charges. Rushing confirmed that he had received a copy of the second amended information, and twice affirmed at the plea hearing that he understood the elements of the charges against him. Rushing was repeatedly told that intent was an element of the second degree murder charge, and he said he understood the nature of the charges against him. His counsel told the court at the plea hearing that he had discussed all of his plea documents with him, had conducted an investigation in preparation for trial, and had advised Rushing "of the repercussions from that plea and proceeding to trial." Rushing knew he was pleading guilty to both means of second degree murder. Therefore, his inability to predict the result in Andress is not relevant to this plea.
Henderson, 426 U.S. 637 (presumption that defendant informed of the nature of the charge against him when defendant receives copy of his indictment prior to pleading guilty).
CONCLUSION
We conclude that Rushing's collateral attack on his 1997 conviction for intentional murder is time barred under RCW 19.73.090(1). As in Fuamaila, Andress and Hinton are immaterial to Rushing's conviction because he also pled guilty to second degree murder based on the alternative means of intentional murder. Even if his personal restraint petition were not time barred, Rushing has not demonstrated that a constitutional error resulted in actual or substantial prejudice or nonconstitutional error resulted in a "complete miscarriage of justice."
We deny Rushing's personal restraint petition.
SCHINDLER and BAKER, JJ., concur.