No. 28790-1-IIThe Court of Appeals of Washington, Division Two.
Filed: December 2, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 99-1-00845-8. Judgment or order under review. Date filed: 04/23/2002.
Counsel for Appellant(s), Benjamin Rayford Black (Appearing Pro Se), 24213 119th St. E, Buckley, WA 98321.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
BRIDGEWATER, J.
Benjamin Rayford Black appeals his conviction of indecent liberties, arguing that the trial court erred in finding that a factual basis supported his guilty plea and in failing to adequately determine that he understood the nature of the charge to which he pleaded guilty. We reverse.
Facts
On February 26, 1999, the State charged Black with three counts of first degree rape of a child. The State alleged that Black digitally penetrated his stepdaughter A.P.’s vagina, performed oral sex on her, and penetrated her vagina with his penis.
A jury convicted Black on one count (penile penetration) and acquitted on the remaining counts. This court reversed his conviction on appeal because of improper prosecutorial argument and remanded the case to the superior court. State v. Black, No. 25731-9-II, 108 Wn. App. 1004, 2001 WL 1000794 (Wash.Ct.App. Aug. 31, 2001) (unpublished).
On remand, the State charged Black with one count of first degree rape of a child based on the penile penetration allegation. The State alleged that between July 6, 1995, and September 6, 1995, when A.P. was six years old, Black `put some form of lotion on his penis and penetrated A.P.’s vagina. He stopped when she told him that it was hurting.’ Clerk’s Papers (CP) at 119.
Pursuant to a plea agreement, the State amended the charge to indecent liberties. The State reduced the charges because Black `has already served substantial prison time’ and because the `[p]roposed disposition appropriately reflects defendant’s conduct.’ CP at 20. In his statement on plea of guilty, Black wrote that he was pleading guilty `to take advantage of [the] State’s recommendation. I understand there exists sufficient evidence to convict me had I gone to trial.’ CP at 27. His plea statement indicated that the court could review the police reports and statement of probable cause to establish a factual basis for the plea.
During the plea hearing, the prosecutor handed the court the amended information and its statement of reasons supporting the plea agreement. The trial court established that Black understood the State’s sentence recommendation, the other direct consequences of the plea, and the rights he waived by pleading guilty. The court then turned to Black’s reasons for pleading guilty.
THE COURT: And, in pleading guilty you have said, `I am entering plea of guilty in order to take advantage of the [S]tate’s recommendations. I understand there exists sufficient evidence to convict me had I gone to trial.’ Is that a true and correct statement?
THE DEFENDANT: Yes.
THE COURT: And, do you agree there is the substantial likelihood you would be convicted if you went to trial?
THE DEFENDANT: Yes.
THE COURT: And, are you doing this on a free and voluntary basis?
THE DEFENDANT: Yes.
THE COURT: Has anyone made any threats or promises to get you to do this?
THE DEFENDANT: No.
THE COURT: All right. The court is satisfied that the defendant has knowingly and intelligently and voluntarily entered this plea of guilty. The court is satisfied he understands the charge and there is a factual basis for the charge and the court will find him guilty as charged.
Report of Proceedings (RP) (Apr. 23, 2002) at 4-5.
The court then sentenced Black to 27 months of confinement, with 27 months’ credit for time served, and 24 months of community placement. Black now appeals.
Analysis
Black argues that the trial court erred in determining that a sufficient factual basis supported his guilty plea and failed to adequately determine that he understood the nature of the charge.
Due process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). Beyond this constitutional minimum, CrR 4.2 requires that the court not accept a guilty plea without first determining that the defendant is making it voluntarily, competently, and with an understanding of the nature of the charge and the consequences of the plea. CrR 4.2(d); Ross, 129 Wn.2d at 284. And CrR 4.2(d) requires that there be a factual basis for the plea. Before accepting a plea, therefore, a judge must determine that the defendant’s admitted conduct constitutes the charged offenses. In re Crabtree, 141 Wn.2d 577, 585, 9 P.3d 814 (2000). A failure to comply fully with CrR 4.2 requires that the defendant’s guilty plea be set aside and his case remanded so that he may plead anew. Wood v. Morris, 87 Wn.2d 501, 511, 554 P.2d 1032 (1976).
By second amended information, the State charged that Black `did unlawfully, feloniously, and knowingly cause A.P. (DOB 7/6/89), not the spouse of the defendant and incapable of consent by reason of being physically helpless, to have sexual contact with him or another, contrary to RCW 9A.44.100(1)(b)[.]’ CP at 18-19. Under Washington law, a person is `physically helpless’ if he or she is unconscious or for any other reason physically unable to communicate unwillingness to an act. RCW 9A.44.010(5).
As Black asserts, there was no discussion during the plea hearing as to whether the State’s factual allegations showed that his victim was `physically helpless.’ The documents incorporated into Black’s guilty plea statement do not support the `physically helpless’ element, as they indicate that A.P. told Black to stop the act of penile penetration when it hurt.
The State responds that there is no need to show a factual basis for all of the elements of the substituted charge so long as an adequate factual basis for the original charge exists, and cites as support In re Barr, 102 Wn.2d 265, 684 P.2d 712 (1984).
In Barr, the petitioner pleaded guilty to one count of indecent liberties after being originally charged with second and third degree statutory rape. Barr, 102 Wn.2d at 266. The parties believed that the indecent liberties statute required the victim to be 14 or less, when the statute actually required the victim to be less than 14. Barr, 102 Wn.2d at 267.[1] When asked to explain what he did to warrant the indecent liberties charge, the petitioner indicated that he had sexual contact with the victim when she was 14. During the plea hearing, the trial court probed the facts underlying the original charges as well as the indecent liberties charge, and the petitioner again admitted that his conduct involved an underage victim. Barr, 102 Wn.2d at 267-68.
The petitioner then sought collateral review, arguing that his plea was invalid because the trial court accepted it without obtaining a factual basis for the indecent liberties charge. Barr, 102 Wn.2d at 269. The Washington Supreme Court responded that a plea does not become invalid because an accused chooses to plead to a related lesser charge that was not committed in order to avoid certain conviction for a greater offense. Barr, 102 Wn.2d at 269-70. `What must be shown is that the accused understands the nature and consequences of the plea bargain and has determined the course of action that he believes is in his best interest.’ Barr, 102 Wn.2d at 270. The court observed that the petitioner’s reasons for desiring the plea agreement were discussed at length, and it found that he was fully aware that the State’s information alleging indecent liberties was potentially defective. Moreover, `[t]he plea bargain, with its factually suspect information, was completely disclosed to the trial court.’ Barr, 102 Wn.2d at 270. The court concluded that where the record establishes a factual basis for the crimes originally charged and reveals the defendant’s understanding of his complicity in those crimes, the failure to state a basis for all the elements of the substituted offense will not preclude a finding that the plea is voluntary and intelligent. Barr, 102 Wn.2d at 271.
In a subsequent case, the supreme court refined its holding in Barr. In re Hews, 108 Wn.2d 579, 741 P.2d 983 (1987). The court rejected an interpretation of Barr that would imply that so long as a defendant received the `benefit of the bargain’ by pleading guilty, a full understanding as to the nature of the ultimate charge was not required. Hews, 108 Wn.2d at 590. Observing that a defendant must understand the essential elements of the charge to which he pleads guilty, the court reflected that the plea in Barr suffered from a `mere technical infirmity’ and that the defendant understood the essential nature of the charges: knowing sexual contact with an underage person who is not one’s spouse. Hews, 108 Wn.2d at 591-93. The court thus interpreted Barr as follows: Barr simply stands for the proposition that an otherwise voluntary plea based on a general understanding of the charged crime and relevant facts which constitute the crime is not invalidated by a mere technical deficiency in one’s understanding. To the extent Barr may be read to abolish the due process requirement that one understands the critical elements of the charges to which one pleads and understands one’s conduct to fall within those charges, it is herein modified.
Hews, 108 Wn.2d at 593-94; see also In re Thompson, 141 Wn.2d 712, 721, 10 P.3d 380 (2000) (citing Hews in rejecting plea because there was no evidence that petitioner understood that he would plead guilty to an invalid charge in exchange for having two valid charges dropped).
Here, the alleged facts do not support the elements of the crime to which Black ultimately pleaded guilty because there is nothing in the record to indicate that his victim was physically helpless as defined by RCW 9A.44.010(5). Nor is there any indication in the transcript of the plea hearing or the supporting plea documents that Black knowingly pleaded guilty to a version of indecent liberties that he did not commit. As Hews makes clear, it is not enough that a defendant knows that he could have been convicted on the original charge. Rather, a valid plea exists only where the defendant also has some knowledge of how the facts relate to the current charge. If they do not support that charge, there must be some discussion of that deficiency on the record and some showing that the defendant understands that he is pleading guilty to a defective or even fictitious charge.
As there is no indication that Black knew that the evidence did not support the crime to which he pleaded guilty, the plea was entered in violation of CrR 4.2(d) and must be vacated.
We reverse and remand for further proceedings consistent with this opinion.
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.
HOUGHTON, J. and HUNT, C.J., concur.