No. 48095-2-IThe Court of Appeals of Washington, Division One.
Filed: February 3, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County, No. 99-1-00983-8, Hon. David S. Nichols, February 12, 2001, Judgment or order under review.
Counsel for Appellant(s), Antonio Salazar, Attorney At Law, 810 3rd Ave Ste 308, Seattle, WA 98104.
Russell R. Abrutyn, Salazar Law Offices, Ste 529, 3250 W Big Beaver Rd, Troy, MI 48084.
Counsel for Respondent(s), David A. Graham, 311 Grand Ave, Bellingham, WA 98225.
Tracey L. Meek, 1639 Humboldt St. Apt 12, Bellingham, WA 98225-4847.
Laura D. Hayes, Whatcom County Prosecutor’s Office, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225.
PER CURIAM.
Cesar David Anaya-Contreras pleaded guilty to first degree burglary while armed with a deadly weapon. He appeals the subsequent denial of his motion to withdraw his plea, arguing that the trial court did not have a sufficient factual basis upon which to accept the guilty plea as required under CrR 4.2(d). Given the particular facts of this case, we agree that the necessary factual basis for the plea was not adequately established in the record. Accordingly, we reverse and remand.
FACTS
Anaya-Contreras was initially charged with one count of first degree burglary while armed with a deadly weapon and one count of first degree robbery while armed with a firearm. These charges arose from events occurring on September 12, 1999, in which Anaya-Contreras accompanied David Perez and John Mark Veliz into a residence belonging to Bruce Jimmy, Jr., where Perez then assaulted Bruce Jimmy, Jr. with a metal bar and stole some of his property. As part of a plea agreement, the State dismissed the robbery charge in exchange for Anaya-Contreras pleading guilty to the burglary charge.
At the plea hearing, the court was informed that Anaya-Contreras intended to plead guilty to first degree burglary with a non-firearm deadly weapon enhancement. The following colloquy then took place:
THE COURT: Okay. Have you discussed this with your attorney?
THE DEFENDANT: Yes, I have.
THE COURT: Are you prepared to plead guilty here today?
THE DEFENDANT: Yes.
THE COURT: And prepared to accept the consequences?
THE DEFENDANT: Yes, sir.
THE COURT: Directing your attention to Page 6 of this document, is this your signature here near the top of the page?
THE DEFENDANT: Yes, it is.
THE COURT: Did you read the document before signing it?
THE DEFENDANT: Yes, I did.
THE COURT: Who actually did the writing down here?
THE DEFENDANT: My attorney.
THE COURT: Even though he did the writing, are those your words?
THE DEFENDANT: Yes, it is.
THE COURT: “I accompanied David Perez into Jimmy Bruce’s residence where David Perez then assaulted Jimmy Bruce.” Are those your words?
THE DEFENDANT: Right.
THE COURT: How do you plead?
THE DEFENDANT: Guilty.
THE COURT: I’ll make a finding of guilty. The matter will be continued for purposes of sentencing.
Prior to sentencing, but after retaining new counsel, Anaya-Contreras moved to withdraw his plea. He argued that there was no factual basis in the record upon which the court could properly have accepted his plea and that he was misinformed regarding whether he would be subject to deportation as a consequence of pleading guilty. The trial court eventually rejected both contentions and denied Anaya-Contreras’ motion to withdraw. As to the factual basis claim, the court ruled as follows:
Although I admit that there is one minor problem with the plea, it is not enough to proceed with a withdrawal. When the defendant signed the Statement of Defendant on Plea of Guilty, he or his attorney filled out paragraph 11 with the following words,
I accompanied David Perez into Jimmy Bruce Jr.[‘s] residence where David Perez the [sic] assaulted Jimmy Bruce. This occurred in Whatcom County. There is nothing in this about a deadly weapon. As is my custom, I read the Affidavit of Probable Cause at the time of the taking of a plea. While I do not have an independent recollection of reading that Affidavit at the time of the plea, the records show that I read that same affidavit at the time of the taking of a plea from John Veliz the previous week.
Furthermore, I specifically asked the defendant if he read the Statement to which he answered yes, and the charge appears in the Statement which makes reference to the deadly weapon. Furthermore, the recommendation of the Prosecutor is contained in paragraph 6(g) which makes a specific reference to the weapon enhancement. There is ample reference in the record to the weapon enhancement.
This appeal followed.
DECISION
Anaya-Contreras challenges the adequacy of the guilty plea proceedings. He contends the trial court should have allowed him to withdraw his guilty plea because the necessary factual basis for the plea was not developed on the record as required by CrR 4.2(d), which provides in pertinent part: 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.
This requirement of CrR 4.2(d) is satisfied if there is sufficient evidence for a jury to conclude that the defendant is guilty, but the trial court need not be convinced of the defendant’s guilt beyond a reasonable doubt.[1] The purpose behind the factual basis requirement is to protect a defendant who is in the position of pleading guilty with an understanding of the nature of the charge but without realizing that his or her conduct does not actually fall within the charge.[2] The material facts underlying the elements of the charged offense must all be included.[3] ‘In addition, the factual basis must be developed on the record at the plea hearing.’[4] Under CrR 4.2(f), a defendant must be allowed to withdraw a guilty plea ‘whenever it appears that the withdrawal is necessary to correct a manifest injustice.’ The defendant has the burden of proving a manifest injustice.[5] A ‘manifest injustice’ is one that is “‘obvious, directly observable, overt, not obscure.'”[6] An involuntary plea constitutes a manifest injustice.[7]
We review a trial court’s denial of a motion to withdraw a guilty plea for abuse of discretion.[8]
Anaya-Contreras contends that the factual basis for accepting his guilty plea was insufficient because his complicity in the charged offense was not established in the record at the time of the plea hearing. In the portion of the plea statement reserved for the defendant’s statements, Anaya-Contreras admitted:
I accompanied David Perez into Jimmy Bruce Jr.[‘s] residence where David Perez the [sic] assaulted Jimmy Bruce. This occurred in Whatcom County.
Immediately below these admissions, there was a sentence in the plea statement, which read:
Instead of making a statement, I agreed that the court may review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea.
The box next to that sentence was not filled in or checked. Anaya-Contreras’ admissions in his plea statement, by themselves, clearly do not provide the necessary factual basis for the charged offense and sentence enhancement. Nothing in the statement itself establishes either that Anaya-Contreras was legally accountable for the conduct of David Perez or that their presence in the residence was unlawful. Nor is there any mention regarding the use of a deadly weapon.
While the necessary factual basis required for a plea under CrR 4.2(d) may be established from sources other than the admissions of the defendant, those sources must be reliable, before the court at the time the plea was taken, and made part of the record at that time.[9]
We reject the State’s contention that the factual basis for Anaya-Contreras’ plea can be properly found in either the charging document or paragraph 4 of the plea statement, which lists the elements of the burglary charge. ‘A plea statement providing only the elements of the charge contains conclusions of law, not the underlying facts, and is therefore inadequate.’[10]
Even assuming the information contained in the prosecutor’s affidavit of probable cause determination may properly be viewed as part of the plea hearing under State v. Arnold,[11] the specific references in the affidavit concerning Anaya-Contreras’ conduct are simply too sketchy and nondescript to provide the necessary factual basis for his plea.
Moreover, the court’s colloquy shed little light on the voluntariness of the plea. At the plea hearing, the trial judge did not ask Anaya-Contreras to describe what he had done or his level of participation. Nor was counsel asked any questions regarding the circumstances surrounding Anaya-Contreras’ decision to plead guilty. While Anaya-Contreras was asked if he had discussed the plea with his attorney, Anaya-Contreras’ simple ‘Yes, I have’ response does not affirmatively show that he either understood the essential elements of the charge or entered the plea intelligently and voluntarily.
The judgment of the trial court is reversed and the case is remanded to permit Anaya-Contreras to enter a new plea.
true and correct spelling, ‘Anaya-Contreras,’ will be used in this opinion.
(1980).