No. 47852-4-I.The Court of Appeals of Washington, Division One.
Filed: January 28, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of Skagit County, No. 001003144, Hon. Susan K. Cook, September 28, 2000, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Kira T. Franz, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Erik Pedersen, Skagit Co Prosc Atty Ofc, 605 S 3rd, Mt Vernon, WA 98273.
APPELWICK, J.
Dale Noisey pled guilty by way of an Alford plea[1] to the second degree kidnapping of his neighbor, 16-year-old K.H. He argues on appeal that since K.H.’s age and their relationship were not included in the information against him, and since these are facts necessary for the imposition of a registration requirement, he should not be required to register as a kidnapping offender. However, Noisey received sufficient notification that a registration requirement would be imposed as a collateral consequence of his plea. The imposition of the registration requirement is affirmed.
FACTS
On July 9, 2000, a witness saw Dale Noisey force his 16-year-old neighbor, K. H., into his car. He drove her to a secluded location, assaulted her and stole jewelry, cash and clothing. Detective Mike Marker was called to the scene and contacted the victim’s mother and the witness. Later that day, the victim returned home and gave a statement. From the victim’s statement, officers were able to locate and impound Noisey’s car and to locate Noisey. Jewelry, cash and clothing described by the victim were found at the scene of the assault and in Noisey’s impounded car. Dale Noisey was charged on July 12, 2000 with one count of kidnapping in the second degree, one count of robbery in the second degree and one count of assault in the fourth degree. The information charging Noisey, although alleging that he kidnapped K.H., did not indicate whether or not Noisey was a parent of K.H. or whether K.H. was under 18. The information also did not indicate that registration may be a requirement of conviction.
On August 17, 2000, Noisey signed an Alford plea to the charges. The plea form that Noisey signed contained a provision that began, “[b]ecause this crime involves a sex offense, or a kidnapping offense involving a minor, I will be required to register with the sheriff of the county of the state of Washington where I reside.” The provision goes on to extensively detail the registration procedures. The directions printed on the form before the registration provision include, “if any of the following paragraphs do not apply, they should be stricken and initialed by the defendant and the judge.” The registration provisions are not stricken or initialed. The form also contains a statement that the prosecuting attorney will recommend that Noisey register as a kidnapping offender.
At the August 18, 2000 plea hearing, the following conversation occurred, The Court: The prosecutor is going to recommend a midrange sentence of about 15 months in prison, costs, crime victim assessments, and restitution. And registration as a kidnapping offender, and no contact with the victim. Do you understand the judge that sentences you doesn’t have to follow that but is free to sentence you to the maximum, do you understand that?
Defendant: Yes, I do.
The Court: There is a registration requirement here, do you understand?
Defendant: I didn’t know that.
The Court: Yes, you have to register where — this registration requirement, Ms. Webb-Lakely, is just like a — Ms. Lakely: I’m sorry, your Honor?
The Court: This registration requirement requires Mr. Noisey to register within 24 hours wherever he lives?
Ms. Lakely: Your Honor, I don’t know the answer. I don’t believe so, because it’s a robbery second — I mean, kidnapping second. But I don’t know that to be true. I can check that, certainly we’ll have to address that at sentencing. Perhaps the Court could advise him that may be a consequence.
The Court: That’s — yes, it is a consequence they’re asking for registration requirement. Do you understand that?
Defendant: Yes, I do.
Noisey then pled guilty to all charges. By stipulation of the parties, Officer Mike Marker’s affidavit of probable cause was considered by the court as the factual basis for the charges. This stipulation is included in the plea agreement that Noisey signed. The affidavit states that K.H. was 16, but does not expressly indicate whether or not Noisey is a parent of K.H.
At the September 28, 2000 sentencing hearing, the defense objected to the registration requirement. The defense argued that because nothing was mentioned in the information about whether Noisey and the victim were related or her age, Noisey should not be required to register. Although Noisey signed the plea agreement containing the stipulation to the police report, he informed the court, “there is a large amount of false information in those reports.”[2] The court then found, “[a]nd in this case, it’s clear in the police reports that we referred to in the Alford plea that the victim was a minor and Mr. Noisey wasn’t a parent, so we’ve got a special condition, it doesn’t need to be pled.” The court then informed Noisey, “[y]ou will also be required to register in the county where you reside with the sheriff of that county.”
On the September 28, 2000 judgment and sentence under “findings,” a box is checked indicating “[t]his case involves kidnapping in the first degree, kidnapping in the second degree, or unlawful imprisonment as defined in chapter 9A.40 RCW, where the victim is a minor and the offender is not the minor’s parent. RCW 9A.44.130.” The judgment and sentence also contains a detailed description of the registration requirement. Noisey signed the judgment and sentence.
On September 29, 2000, Noisey was given a chance to withdraw his plea because of a change as to the term of his community custody. Noisey declined to withdraw his plea and was re-sentenced. Registration as a kidnapping offender was again included on the amended judgment and sentence that Noisey signed. Noisey argues on appeal that since his relationship to the victim and the victim’s age were not included in the information, the trial court erred in imposing the registration requirement.
ANALYSIS
Those convicted of certain kidnapping offenses must register as kidnapping offenders with their county sheriff in Washington. RCW 9A.44.130(1). The kidnapping offenses subject to the registration requirement are defined as, (i) The crimes of kidnapping in the first degree, kidnapping in the second degree, and unlawful imprisonment as defined in 9A.40 RCW, where the victim is a minor and the offender is not the minor’s parent. RCW 9A.44.130(9)(b) (emphasis added).
On appeal, the parties agree that the underlined qualifier applies to all three listed crimes. Since the court is asked to decide whether as a matter of law the above registration requirement was properly imposed upon Noisey, the standard of review is de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991). The factual findings of the trial court, however, are reviewed for substantial evidence. Waid v. Department of Licensing, 43 Wn. App. 32, 35, 714 P.2d 681 (1986).
Noisey advances numerous arguments attempting to escape the imposition of the registration requirement. We recognize before addressing his arguments that Noisey does not dispute any of the facts necessary to impose the registration requirement. Instead, Noisey argues on appeal that facts sufficient to establish a registration requirement must be included in the information. Every essential element of the charged crime is required in the information. State v. Thorne, 129 Wn.2d 736, 779, 921 P.2d 514 (1996). “The primary purpose of that requirement is that the accused be informed of the nature of the accusation so that he or she can prepare an adequate defense.” Thorne, 129 Wn.2d at 779.
Noisey pled guilty to second degree kidnapping the elements of which are “intentionally abduct[ing] another person.” RCW 9A.40.030(1). However, the age of the victim and the defendant’s relationship to the victim[3] are not elements of the charged offense. RCW 9A.40.030(2). Thus, the information was not deficient to sustain his judgment and sentence for the charged offense. To support his argument that the relevant facts must be pled in the information, Noisey relies on three cases that address the registration requirement for sex offenders. The cases cited merely exclude crimes that do not fall within the definition of crimes covered by the registration requirement. State v. Johnson, 104 Wn. App. 489, 17 P.3d 3 (2001) (defendant’s conviction for possession of child pornography did not fall within the definition of sexual offense in the registration statute); Oostra v. Holstine, 86 Wn. App. 536, 937 P.2d 195 (1997) (in a civil proceeding where defendant admitted to sexually abusing his daughter, the court found legislature intended only those criminally convicted of sexual offenses be required to register) State v. S.M.H., 76 Wn. App. 550, 887 P.2d 903 (1995) (court found that registration statute did not cover juvenile sexual motivation crimes in its definition of sex offense). There is no question in this case that second degree kidnapping is included in the definition of kidnapping offenses that require registration under the statute. RCW 9A.44.130(9)(b). Thus, the cases presented by Noisey are of no help to him. Noisey fails to offer any legal basis for requiring that facts sufficient to sustain a registration requirement must also be pled in the information.
The law does require notice. “A criminal defendant must be informed of all the direct consequences of his plea prior to acceptance of a guilty plea.” State v. Ward, 123 Wn.2d 488, 512, 870 P.2d 295. A defendant, however, need not be informed of all possible collateral consequences of his plea. Ward, 123 Wn.2d at 512. The duty to register is a collateral consequence of a guilty plea. Ward, 123 Wn.2d at 514. Therefore, a defendant does not have a common law right to be informed that he will be required to register as a result of his guilty plea. By statute, however, the court is required to provide, written notification to any defendant charged with a sex offense or kidnapping offense of the registration requirements of RCW 9A.44.130. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant. RCW 10.01.200.
Both the plea form and the judgment and sentence in this case informed Noisey of his registration requirement. Noisey’s signed plea agreement stated, “[b]ecause this crime involves a sex offense, or a kidnapping offense involving a minor, I will be required to register with the sheriff of the county of the state of Washington where I reside.” The affidavit of probable cause of Detective Mike Marker was stipulated to as establishing the factual basis for Noisey’s plea. The affidavit mentioned that K.H. was 16 years old a total of thirteen times. Noisey offered no contrary evidence as to K.H.’s age. He made a vague allegation at sentencing that much of the police report was false, however, he did not specifically address the age of K.H. Furthermore, the trial court gave him the opportunity to withdraw his plea after he was orally advised by the court that registration likely would occur. The required notice was given.
Noisey argues in the alternative that the court’s failure to hold a real facts hearing bars the judicial findings necessary to impose the registration requirement. Both Noisey and the State quote RCW 9.94A.370(2) (recodified as § 9.94A.530 by Laws 2001, ch. 10, § 6) that provides: In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence. Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the standard sentence range except upon stipulation or when specifically provided for in RCW 9.94A.535(2)(d), (e), (g), and (h). Although this statute applies specifically to the determination of the length of a sentence, it is helpful to this determination as well.
Noisey pled guilty to a crime that cannot be committed by a parent, and acknowledged in the plea agreement that the offense involved a minor. Thus, the plea record established both facts relevant to registration. Noisey does not dispute that he signed the plea agreement. He does not deny his statement to the court at the time the plea was accepted that he understood a registration requirement might be imposed. Noisey rather argues that he did object to the factual basis by stating during sentencing, “I’m assuming that the Court has reviewed the reports, and I would like to inform the Court that there is a large amount of false information in those reports.” This vague pronouncement does not constitute an objection to a material fact. Nor was there a request for a real facts hearing. Both K.H. and her mother were before the court during sentencing and a proper objection would have led to an inquiry and finding of the relevant facts. Thus, without a proper objection to the material facts of age or relationship there is nothing in dispute that would require the court to hold a factual hearing. Noisey waived a real facts hearing. Noisey pled guilty to second degree kidnapping. The plea document he signed contained notice of the need to register. He had a chance to withdraw his plea of guilty after the court reiterated that he would be required to register and chose not to do so. Relationship to the victim and the minority of the victim are not elements of the charged crime of second degree kidnapping and were not required to be in the information. Notice of the registration requirement and its factual basis required by statute were provided at the time of the plea and the time of sentencing. Noisey waived a real facts hearing by failing to object to facts that would necessitate a hearing before the trial court.
The trial court found that the victim was a minor and that Noisey was not her parent. Noisey does not assign error to these findings so they are a verity on appeal. RAP 10.3(g). Thus, we affirm the imposition of the registration requirement based on the findings of the trial court below.
We affirm.
WE CONCUR: ELLINGTON, J., KENNEDY, J.
(1970).