Opinion
No. 34545-5-II.
May 22, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-05891-1, Katherine M. Stolz, J., entered February 10, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Armstrong and Hunt, JJ.
Robert F. Armbruster, Jr. appeals his convictions for assault and malicious mischief. He plead guilty to both offenses, but now seeks to withdraw his pleas arguing they were not knowing, intelligent, and voluntary. Armbruster's argument is meritless. We affirm.
FACTS
Following an incident at his ex-girlfriend's home, the State charged Armbruster with first degree burglary-domestic violence, second degree assault-domestic violence, and two counts second degree malicious mischief-domestic violence. Before trial, the State offered to drop the burglary charge and one count of malicious mischief in exchange for Armbruster's guilty plea. Armbruster agreed "[w]ith great reluctance." Report of Proceedings (RP) (Feb. 1 Apr. 5, 2006) at 2.
By amended information, the State charged Armbruster with second degree assault-domestic violence, contrary to RCW 9A.36.021(1)(a) and RCW 10.99.020, and second degree malicious mischief-domestic violence, contrary to RCW 9A.48.080(1)(a) and RCW 10.99.020. Accordingly, Armbruster offered the trial court a statement of defendant on plea of guilty (Statement). The Statement bears Armbruster's signature and reads in part:
I UNDERSTAND THAT I HAVE THE FOLLOWING IMPORTANT RIGHTS, AND I GIVE THEM ALL UP BY PLEADING GUILTY:
(a) The right to a speedy and public trial by an impartial jury in the county where the crime is alleged to have been committed;
(b) The right to remain silent before and during trial, and the right to refuse to testify against myself;
(c) The right at trial to hear and question the witnesses who testify against me;
(d) The right at trial to testify and to have witnesses testify for me. These witnesses can be made to appear at no expense to me;
(e) I am presumed innocent unless the charge is proven beyond a reasonable doubt or I enter a plea of guilty;
(f) The right to appeal a finding of guilt after a trial as well as other pretrial motions such as speedy trial challenges and suppression issues.
Clerk's Papers (CP) at 9, 14; see also CrR 4.2(g). Before accepting the Statement, the trial court entered into a colloquy with Armbruster:
THE COURT: Your name is Robert Armbruster, you're 45 years-of-age and your date of birth is May 8, 1960, is that correct?
[ARMBRUSTER]: Yes.
THE COURT: And, you're a high school graduate.
[ARMBRUSTER]: Correct.
THE COURT: And, with the assistance of your attorney [. . .] at this time you're prepared to plead guilty to assault in the 2nd degree and malicious mischief in the 2nd degree. The assault carries a maximum sentence of 10 years and/or $20,000.00 with the standard range of 6 to 12 months. And, the malicious mischief carries a maximum range of 5 years and/or $10,000.00 and standard range of 90 days. Is that your understanding?
[ARMBRUSTER]: Yes, ma'am.
THE COURT: You have certain constitutional rights which are set forth on of your guilty plea. Did you go over those rights with [defense counsel]?
i.e., section 5 of the Statement, excerpted supra. See CP at 9.
i.e., section 5 of the Statement, excerpted supra. See CP at 9.
[ARMBRUSTER]: Yes.
THE COURT: And, do you understand those rights?
[ARMBRUSTER]: Yes, ma'am.
THE COURT: And, are you waiving all those rights including the right to trial?
[ARMBRUSTER]: Yes.
RP (Feb. 1 Apr. 5, 2006) at 4-5.
The trial court reviewed the remaining consequences of the proffered plea with Armbruster. These consequences are likewise outlined in his Statement — viz., sentencing, a strike offense, restitution, community custody, domestic violence treatment, miscellaneous costs, and loss of voting and arms-bearing rights. The colloquy then continued:
THE COURT: [A]ccording to your statement you wish to take advantage of the plea negotiations, is that true?
[ARMBRUSTER]: Yes.
THE COURT: Has anyone made any threats or promises to you to get you to do this?
[ARMBRUSTER]: No, ma'am.
THE COURT: Are you pleading guilty to assault in the 2nd degree and malicious mischief willingly and voluntarily?
[ARMBRUSTER]: Yes.
THE COURT: And, do you understand if I accept your plea you cannot withdraw your plea?
[ARMBRUSTER]: Yes, ma'am.
RP (Feb. 1 Apr. 5, 2006) at 6.
The trial court found that Armbruster understood the consequences of his plea and that he "voluntarily, willingly and intelligently entered" the same. RP (Feb. 1 Apr. 5, 2006) at 7. He was found guilty of both offenses and sentenced to 12-months confinement.
After sentencing, Armbruster sent a letter to the trial court claiming misrepresentation and asserting his innocence. ("My lawyer misinformed me through all the proceedings therefore I ended up taking a plea for something that I am innocent [of]"). CP at 32. The court conducted a hearing on the matter. At the hearing, Armbruster told the court: "I feel I had inadequate representation. I wasn't told the truth before my omnibus hearing and I'd like to continue with this. I'd also like to get different counsel." RP (Feb. 1 Apr. 5, 2006) at 8. The court opined, "I don't see any reason to set aside the [plea]" and "Mr. Armbruster acknowledges on the record that he's doing this of his own free will." RP (Feb. 1 Apr. 5, 2006) at 9. The trial court signed an order of indigency and authorized Armbruster to appeal his plea.
ANALYSIS
Armbruster argues that his guilty plea was not knowing, intelligent, and voluntary because the trial court failed to inform him of the "nature" of the constitutional rights necessarily waived on a guilty plea. He asserts that because his plea was not knowing, intelligent, and voluntary, his constitutional due process rights were violated. Claims implicating constitutional rights are reviewed de novo. State v. Manro, 125 Wn. App. 165, 170, 104 P.3d 708, review denied, 155 Wn.2d 1010 (2005).
Where a defendant pleads guilty and files a pre-judgment motion to withdraw his or her plea under CrR 4.2(f), or a post-judgment motion under CrR 7.8, we review for abuse of discretion. See State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). Armbruster made no such motion below. Armbruster did submit a letter to the trial court after sentencing, in which he claimed misrepresentation and asserted his innocence. But it is not clear that the trial court treated the letter as a CrR 7.8 motion to withdraw. On appeal, Armbruster does not argue that his letter was a motion to withdraw, therefore the abuse of discretion standard does not apply here.
A guilty plea must be knowing, intelligent, and voluntary to satisfy federal and state constitutional due process requirements. See U.S. Const. amends. V, XIV; Wash. Const. art. I, §§ 3; Boykin v. Ala., 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). CrR 4.2 provides further safeguards by requiring the trial court to determine that (1) the defendant's plea is voluntary and competently made, with an understanding of the nature of the charge and the consequences of the plea, and (2) there is a factual basis for the plea. CrR 4.2(d); State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996).
Compliance with CrR 4.2(d) and the statement of defendant on plea of guilty form contained in CrR 4.2(g) thus creates a strong presumption of constitutional validity:
"When a defendant fills out a written statement on plea of guilty in compliance with CrR 4.2(g) and acknowledges that he or she has read it and understands it and that its contents are true, the written statement provides prima facie verification of the plea's voluntariness. When the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable."
State v. Branch, 129 Wn.2d 635, 642 n. 2, 919 P.2d 1228 (1996) (quoting State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982)); accord State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998); c.f. Ross, 129 Wn.2d at 287-88 (use of outdated plea form lacking community custody provisions works a manifest injustice, allowing withdrawal of guilty plea on appeal).
Under Boykin, the trial record must show that in pleading guilty, the defendant understood his or her relinquishment of three constitutional rights: the right to jury trial, the right of confrontation, and the privilege against self-incrimination. State v. Elmore, 139 Wn.2d 250, 269, 985 P.2d 289 (1999) (citing Boykin, 395 U.S. at 243), cert. denied, 531 U.S. 837 (2000). But our Supreme Court has held:
"[T]here is no constitutional requirement that there be express articulation and waiver of the three rights referred to in Boykin by the defendant at the time of acceptance of his guilty plea if it appears from the record, and the clear and convincing weight of extrinsic evidence if the record is unclear on the matter, that the accused's plea was intelligently and voluntarily made, with knowledge of its consequences."
Branch, 129 Wn.2d at 644 (quoting Wood v. Morris, 87 Wn.2d 501, 508, 554 P.2d 1032 (1976)).
Armbruster is incorrect when he asserts the trial court failed to inform him of his constitutional rights. Both his Statement and the trial court's colloquy appraised Armbruster of his constitutional rights, as well as the direct consequences of his plea. Armbruster signed a written plea form in full compliance with CrR 4.2(g), wherein he acknowledged both the voluntariness of his plea and his comprehension of its consequences. The record before us is clear and Armbruster offers no extrinsic evidence to demonstrate that his plea violated the federal and state constitutional due process requirements. Armbruster's guilty plea was knowing, intelligent, and voluntary, and does not violate due process. We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and HUNT, J., concur.