Opinion
Nos. 36412-3-II; 36483-2-II.
October 21, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-05269-4, Sergio Armijo, Stephanie A. Arend, and Katherine M. Stolz, JJ., entered April 20, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Hunt, J.
UNPUBLISHED OPINION
Having been found competent to stand trial on January 17, 2007, James Eugene Baker, against his attorney's advice, pleaded guilty as charged to four counts of first degree child molestation in Pierce County Cause No. 06-1-05269-4. In addition to the first degree child molestation charges, the State had filed a notice alerting Baker that, if the court found that he had committed a prior sex offense, he could be classified as a persistent offender under former RCW 9.94A.030(29)(b) (1999) and sentenced to life without possibility of parole if convicted of first degree child molestation. Based on his guilty plea, the court found Baker guilty as charged on February 27, 2007, and sentenced him to life without the possibility of parole on April 20, 2007.
Baker did not move to withdraw his plea under CrR 4.2 or 7.8. Instead, he filed a timely notice of appeal, including a pro se statement of additional grounds (SAG), and, on May 24, 2007, a personal restraint petition (PRP). In his appeal, Baker and his counsel challenge the lower court's acceptance of his guilty plea, arguing that he was incompetent and that there is no factual basis in the record to support the plea. In his PRP, Baker alleges that his attorney was ineffective for not defending him and for not urging the court to impose a lesser sentence. We consolidated these matters for review.
Because the record reveals ample factual basis to support the trial court's acceptance of Baker's plea to four counts of first degree child molestation and because the record does not support Baker's claim that his plea was not knowing and voluntary, we affirm the conviction and deny the petition.
DISCUSSION
The State charged Baker with four counts of first degree child molestation for having sexual contact with A.J.D. between June 14, 2000 and May 10, 2003. A deputy prosecutor filed a declaration for determination of probable cause in support of four first degree child molestation counts. The deputy prosecutor's declaration included the following account of Baker's investigative interview:
Detective [Jeffery] Turner contacted [Baker] on November 3, 2006. [Baker] was advised of his Miranda rights, which he acknowledged and waived. [Baker] admitted to Detective Turner that he watched the children, including A.J.D., at the apartment on Fawcett. [Baker] recalled that A.J.D. was 8-years-old at the time. [Baker] recalled watching the children 3 to 4 times per week over a period of about 6 months. [Baker] admitted that during that time he fantasized about having sex with A.J.D. Detective Turner asked [Baker] if he ever acted upon those fantasies. [Baker] admitted that he had. [Baker] admitted that he stroked A.J.D.'s penis with his hand while he masturbated with his other hand. [Baker] told Detective Turner that he knew it was wrong but he could not control himself. [Baker] admitted that he tried to get A.J.D. to touch [Baker's] penis, but A.J.D. refused. [Baker] admitted that he molested A.J.D. on at least 8 occasions during the time A.J.D. lived at the apartment on Fawcett. [Baker] gave a tape recorded statement confessing his crimes.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Police verified through records that A.J.D.'s mother lived in the apartment from June 14, 2000 through May 10, 2003.
Clerk's Papers (CP) at 3-4.
Immediately following Baker's arrest, the arresting officer, Detective Turner, filed a statement and preliminary finding of probable cause signed under penalty of perjury. The Honorable David B. Ladenburg entered an order finding probable cause to believe Baker committed child molestation.
At arraignment, a defendant may plead not guilty, not guilty by reason of insanity, or guilty. CrR 4.2(a); State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). "[A] guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt." In re Pers. Restraint of Bybee, 142 Wn. App. 260, 268, 175 P.3d 589 (2007) (citing Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975); State v. Saylors, 70 Wn.2d 7, 9, 422 P.2d 477 (1966); Woods v. Rhay, 68 Wn.2d 601, 606-07, 414 P.2d 601, cert. denied, 385 U.S. 905 (1966); In re Application of Salter, 50 Wn.2d 603, 606, 313 P.2d 700 (1957)). By pleading guilty, a defendant admits factual and legal guilt for the charged crime. Bybee, 142 Wn. App. at 268 (citing United States v. Broce, 488 U.S. 563, 570, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989)). The guilty plea thus provides a sufficient and independent factual basis for conviction and punishment. See Haring v. Prosise, 462 U.S. 306, 321, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983) (quoting Menna, 423 U.S. at 63 n. 2).
A factual basis is sufficient to support a guilty plea if there is sufficient evidence for a jury to conclude that the defendant is guilty. In re Pers. Restraint of Ness, 70 Wn. App. 817, 824, 855 P.2d 1191 (1993), review denied, 123 Wn.2d 1009 (1994). As a constitutional matter, the trial court is not limited to the defendant's admissions in his statement of defendant on plea of guilty to determine factual basis; it may rely on any reliable source, as long as the source is made part of the record. Irizarry v. United States, 508 F.2d 960, 967 (2nd Cir. 1974); State v. Elmore, 139 Wn.2d 250, 262-63, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837 (2000); In re Pers. Restraint of Fuamaila, 131 Wn. App. 908, 924 n. 24, 131 P.3d 318 (2006). Here, the court record contained the deputy prosecutor's sworn declaration of probable cause as well as the arresting officer's sworn statement and two judicial findings that there was probable cause to believe that Baker had molested a young child on multiple occasions. Thus, the record demonstrates factual basis to support the trial court's acceptance of Baker's knowing and voluntary plea.
Despite the authority cited above, the parties apparently believe that Baker may limit the facts the court may rely on in determining a factual basis for his proffered guilty plea. Baker argues that his statement in paragraph 11 is insufficient to show that his guilty plea was knowing and voluntary because it merely repeated the elements of the offense and he did not check the box allowing the trial court to consider additional information to establish factual basis sufficient to support acceptance of his plea. The State does not address the merits of Baker's factual basis argument but contends that Baker's challenge to the factual basis for his plea has not been preserved for appeal because he has not filed a motion to withdraw his guilty plea. It appears the parties are applying the real facts doctrine which limits the facts the court may rely on at sentencing, former RCW 9.94A.370(2) (1999), to the factual basis requirement necessary for the court to accept a defendant's proffered guilty plea. But the purpose of the defendant's statement on plea of guilty is to determine whether the defendant has knowledge of the elements of the offense, not to establish the sufficiency of the factual basis for the charge. See, e.g., Martin, 94 Wn.2d at 4-6. And paragraph 11 of Baker's statement of defendant on plea of guilty clearly establishes that he was advised of the elements and initialed the following statement:
Paragraph 11 of the guilty plea form was amended in 1999 or 2000, but there is nothing to show why the rules committee made this change. See 2 Washington Court Rules annot. CrR 4.2 Notes of Decisions at 781-92 (2d ed. 1999-2000).
During the time between June 2000 and May 2003 in Pierce County, WA I had sexual contact on at least four occasions with A.J.D. who was less than 12 years old at the time and not married to me. I was more than 36 [months] older than A.J.D. at the time.
CP at 22.
Standing alone, this admission is sufficient to prove Baker's knowledge of the elements of the offenses with which he was charged. When combined with the statement and declaration, upon which a judge determined probable cause for the four charges, the record contains ample factual basis to accept Baker's guilty pleas to the crimes as charged.
But Baker contends that his plea was not knowing and voluntary. He asserts that "[r]emand is required because the trial court accepted Baker's plea of guilty without independently determining whether he was competent to plead guilty when there was evidence calling his competency into question and without independently ascertaining a factual basis for the plea." Br. of Appellant at 4. As shown above, the lower court record contained ample factual basis to accept Baker's plea of guilty as charged, if it was knowing and voluntary.
Baker argues that the record contains evidence calling his competency into question that required the trial judge to make an independent determination of Baker's competency before accepting his guilty plea. We disagree.
The competency standard for pleading guilty is the same as that for standing trial. State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001). A defendant is competent to stand trial if he is capable of appreciating his peril and rationally assisting in his own defense. Marshall, 144 Wn.2d at 281. When a defendant claims that he was incompetent to plead guilty, it is the same as claiming that his guilty plea was involuntary. Marshall, 144 Wn.2d at 281. A defendant who claims that he was incompetent when he pleaded guilty must support his claim with evidence. If such evidence is presented to a trial court in support of a motion to withdraw a guilty plea, the trial court must either grant the motion or hold a competency hearing. Marshall, 144 Wn.2d at 281. But the trial court may reject an unsupported incompetency claim without a competency hearing. See State v. Hystad, 36 Wn. App. 42, 45, 671 P.2d 793 (1983) (rejecting, under manifest injustice standard, an unsupported claim that a defendant's plea was involuntary because of methadone-induced confusion).
In support of the incompetency argument Baker cites trial defense counsel's statements advising the trial court that Baker had undergone competency examinations and that Baker was entering his plea against counsel's advice. But the defense counsel's remarks to the trial court here are not evidence of Baker's incompetence. They are merely factual statements conveying case history to a trial court judge who had not presided over Baker's competency hearing on January 17, 2007, a month earlier. At that hearing, a different trial court judge reviewed competency evaluation reports submitted by Western State Hospital (WSH) and an independent evaluator, Dr. Mark Whitehill, selected by the defense. Both evaluators reported that Baker was competent to stand trial.
The report of the independent evaluator chosen by the defense stated:
Mr. Baker demonstrated an advanced understanding of the legal system. . . .
. . . Mr. Baker appeared rationale[sic] and devoid of symptoms which would hinder his capacity to assist counsel. He demonstrated an adequate memory of his contacts with the alleged victim and his family as well as the time period during which he interacted with them. His ability to convey relevant facts to counsel, and his motivation to do so, appeared very good.
CP at 67.
The WSH report concluded that
Mr. Baker is a man who does not have prominent symptoms of major mental illness. His measure intelligence is near or in the Borderline Range. He has some difficulty with attention and with impulsivity. However, none of his cognitive or intellectual deficits would be expected to interfere with the capacities required to assist his attorney and understand the proceedings.
Mr. Baker is experienced with the justice system, and has been through several adjudications. His ability to communicate is intact. He demonstrated both a working knowledge of the proceedings, and the ability to plan and problem-solve. He could name his charges and could state the basic factual allegations. He could identify data that might be useful to the prosecution and the defense. He could spontaneously articulate trial rights such as the right to counsel, the right to question witnesses, the presumption of innocence, and the right to a jury. He was able to explain the workings of a plea bargain, and he identified the relevant factors one might consider. He stated that he had recall for the relevant time period, he trusted his attorney, and he would be able to relate the events to his attorney. The data strongly suggests: 1) Mr. Baker has the capacity to understand the charges and assist in his defense, and 2) a mental disease or defect does not significantly interfere with these capacities.
CP at 61.
The record contains no basis on which a trial court could legitimately find that Baker was incompetent to stand trial and the trial court did not err in entering a competency finding on January 17, 2007. Moreover, Baker's decision to plead guilty against advice of counsel is not evidence of incompetency. As the State notes, Baker has provided no legal authority that the fact that a defendant disregards the advice of his attorney, in and of itself, is a reason to doubt the defendant's competency. See People of the Territory of Guam v. Taitano, 849 F.2d 431, 432 (9th Cir. 1988) (fact that defendant refuses to cooperate with lawyer does not automatically render him incompetent to stand trial); State v. Kelly, 331 S.C. 132, 148 n. 5, 502 S.E.2d 99 (1998) (the fact that defendant chose to disregard his lawyer's advice does not make him incompetent to stand trial); see also United States v. Riggin, 732 F. Supp. 958, 964 (S.D. Ind. 1990).
Moreover, review of the record of Baker's guilty plea hearing belies his claims on appeal that his guilty plea was not knowing or voluntary and that his counsel (whose advice he rejected) was ineffective.
Statement of Additional Grounds
In his SAG, Baker contends that his counsel was ineffective for failing to interview the victim or investigate his prior convictions. But the record does not support this claim. Moreover, Baker pleaded guilty over his counsel's objection and stipulated to his prior criminal history knowing that he faced a sentence of life without the possibility of parole. The record does not support Baker's claim that his counsel was ineffective.
Likewise, the record belies Baker's second ground, that WSH staff conducted a competency evaluation by "observing his movements" and that "at no time were proper compency [sic] testing done. And by observing someone you can't determines [sic] one mental health status." SAG at 1. The WSH report was filed on December 22, 2006, and appears in the record in its entirety. The following is relevant to Baker's second SAG ground:
Mr. Baker was admitted to the Center for Forensic Services at Western State Hospital on 12/13/06. He was placed on ward F-2 to undergo psychological, psychiatric, psychosocial, and physical examinations, including 24-hour clinical observations. . . . This comprehensive evaluation was completed by the undersigned, taking into consideration all of the assessments, consultations, and findings of the entire evaluation team. In addition to reviewing these records and consulting with the treatment team, the following information was reviewed and considered in the preparation of this report:
1. Multidisciplinary intake interview on 12/13/06 and individual forensic interview with Mr. Baker on 12/18/06 for approximately 70 minutes
2. Discovery documents provided by the State
3. Washington State Patrol WATCH criminal history record
4. Medical records from Harborview Medical Center from 5/23/00 to 08/21/01
5. Medical Records from past hospitalizations at Western State Hospital
6. Telephonic Interview with defendant's mother Dee Jensen, on 12/18/06
CP at 57-58.
Because the record reveals ample factual basis to support its acceptance of Baker's plea to four counts of first degree child molestation and because the record does not support Baker's claim that his plea was not knowing and voluntary, we affirm the conviction and deny the petition.
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.
We Concur:
HUNT, J.
VAN DEREN, C.J.