State v. Conwell

Kurtz, A.C.J.

— After he shot and killed Ricky Franetich, Jeremy Conwell was charged in district court with the crime of second degree manslaughter. Before he was arraigned, he negotiated a plea agreement with the prosecutor by the terms of which he would he charged in superior court with one count of carrying a concealed weapon and one count of second degree reckless endangerment. He agreed to plead guilty to these two counts in exchange for a prosecutor’s recommendation of concurrent 90-day sentences. The superior court judge refused to accept the plea agreement but, nevertheless, arraigned Mr. Conwell on the two gross misdemeanor charges. Without asking Mr. Con-well for his plea, the court entered a plea of “not guilty” for him. The State subsequently was allowed to file an amended information charging first degree manslaughter.

Mr. Conwell was granted discretionary review contending the court erred by: (1) not allowing him to plead guilty as charged by the original information, and (2) allowing the State to breach its plea agreement. We conclude the superior court could reject the plea agreement if it determined that it did not meet prosecutorial standards and the interests of justice under ROW 9.94A.090. We further conclude the court did not err by not accepting Mr. Conwell’s guilty plea to the charges in the original information because it was conditioned upon the plea agreement rejected by the court. Last, we conclude the State could revoke its offer of a plea arrangement because the State was released from its agreement by RCW 9.94A.090 when the court rejected the agreement and because there is no showing that Mr. Conwell detrimentally relied upon the agreement. The judgment of the superior court is affirmed.

FACTS

On the night of June 26, 1997, a group of young people gathered in a secluded, wooded area of Minnehaha Park to have a party. Jeremy Conwell’s girl friend was a part of the group and he tried to get her to leave. One of the individuals attending the party was offended by Mr. Conwell’s conduct and struck him. As Mr. Conwell tried to retreat to his truck, he was followed by Mr. Franetich and other members of the party. Mr. Conwell was carrying a gun which he fired several times. Mr. Franetich received a fatal wound.

Mr. Conwell was initially booked into Spokane County Jail on June 26 on the charge of murder in the second degree for the intentional killing of Mr. Franetich. On June 30, the prosecutor filed a complaint in district court charging Mr. Conwell with one count of manslaughter in the second degree.

Over the course of the next several weeks, and before any charges were filed in superior court, Mr. Conwell and the prosecutor negotiated a plea agreement. By the terms of the agreement, the prosecutor agreed to charge Mr. Con-well with one count of carrying a concealed weapon and one count of reckless endangerment in the second degree. Mr. Conwell agreed to plead guilty to the two gross misdemeanors in exchange for a recommendation of 90-day sentences on the counts to run concurrently. These charges were filed on September 24.

Five days later, Mr. Conwell appeared before the superior court to be arraigned on the two misdemeanor charges and to enter his guilty plea pursuant to the plea agreement. He submitted to the court a written statement of defendant on plea of guilty, which the court reviewed with him. The court made appropriate inquiries regarding whether the plea was being made competently, knowingly and voluntarily. Furthermore, Mr. Conwell and the prosecutor made statements to the court which demonstrated that there was a factual basis for the plea.

The court refused to accept Mr. Conwell’s guilty plea to the negotiated charges set out in the information. The court expressed its concern that the negotiated charges did not fairly and appropriately reflect Mr. Conwell’s conduct. The court stated it did not feel comfortable taking the guilty plea but freed the parties to take the plea arrangement to another judge. At that point, the court observed Mr. Con-well had not yet been arraigned and proceeded to arraign him on the two gross misdemeanor charges. The court did not ask Mr. Conwell how he pleaded, but entered a “not guilty” for him. Neither Mr. Conwell nor the prosecutor objected to this procedure.

On December 11, 1997, the State made a motion to amend the information to one count of manslaughter in the first degree. Mr. Conwell moved to be allowed to plead guilty to the negotiated information originally filed on September 24. A hearing on these motions was held on January 15, 1998. On January 26, the court granted the State’s motion to amend the information and denied Mr. Conwell’s counter-motion to allow the guilty plea to the original information. Mr. Conwell filed a motion for discretionary review with this court which we granted.

ANALYSIS

Did the court err by not allowing Mr. Conwell to plead guilty as charged in the original information?

Mr. Conwell contends criminal defendants have a nearly absolute right to plead guilty at arraignment. As applied to his case, Mr. Conwell argues this means the court lacked authority to refuse his guilty plea on the day of his arraignment. In support of his argument, he states: (1) he was unequivocal in his desire to plead guilty as charged to second degree reckless endangerment and carrying a concealed weapon; (2) he expressed his willingness to admit his factual guilt of the crimes charged; (3) a factual basis for his guilty pleas existed independent of his admissions; (4) he had been fully advised by his attorney of his legal and constitutional rights; (5) he expressed his voluntary desire to waive those rights and enter pleas of guilty; (6) he had been fully advised of the legal consequences of his guilty pleas; (7) he was competent to understand (and in fact understood) his waiver of rights and the consequences of his plea; and (8) with full advice of counsel, he repeatedly expressed his desire to plead guilty. In summary, Mr. Con-well contends the court erred in not allowing him to plead guilty as charged.

A defendant has a constitutional right to know the nature and cause of the accusation against him or her. Const, art. I, § 22 (amend. 10); U.S. Const, amend. VI. There is, however, no constitutional right to enter a guilty plea. State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995); State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). Nevertheless, a state may confer a right to plead guilty by other means, such as by court rules or statutes. A right to plead guilty has been established in Washington by court rule. CrR 4.2(a) (“A defendant may plead not guilty, not guilty by reason of insanity or guilty.”); Ford, 125 Wn.2d at 923; Martin, 94 Wn.2d at 4. The scope of this right is a question of law which is reviewed de novo. Ford, 125 Wn.2d at 923.

A defendant’s right to plead guilty is explained in Martin and Ford. In Martin, the defendant asserted a right to plead guilty to a charge of first degree murder in order to avoid imposition of the penalty of death that might follow from a jury trial. Martin, 94 Wn.2d at 2. The trial court refused to accept the guilty plea “on the sole ground that the State’s right to request the death penalty prevented such an admission of guilt.” Id. at 3. The Supreme Court reversed, noting: “[W]e have been informed of no statute or rule of court which grants a trial court authority to decline a plea of guilty made competently, knowingly, voluntarily, unconditionally, unequivocally and on advice of counsel.” Id. at 5. The court held that CrR 4.2(a) grants a right to plead guilty at arraignment “unhampered by a prosecuting attorney’s opinions or desires.” Martin, 94 Wn.2d at 3.

Martin was clarified by Ford. In Ford, the defendant was charged by information with three counts of first degree murder. At Mr. Ford’s arraignment, he proffered a plea of guilty. The prosecutor immediately moved for a continuance of the arraignment stating he possessed potentially exculpatory material which he needed to disclose to Mr. Ford prior to any plea. The court continued the arraignment proceeding for a week and did not accept the proffered guilty plea. During the following week, potentially inculpatory evidence was discovered and the State moved to amend the charges to aggravated first degree murder, which the trial court granted.

On appeal, Mr. Ford argued that once his guilty plea was proffered, Martin compelled the trial court to determine immediately its voluntariness and to accept the guilty plea if it was made knowingly, intelligently and voluntarily. In response to this argument, the Supreme Court stated the court “is not a potted-palm functionary” and recognized the obligations imposed upon the court by CrR 4.2(d) as part of the plea of guilty proceeding. Ford, 125 Wn.2d at 923-24.

Martin and Ford make clear that the right to plead guilty is a creature of court rule. Id. at 923; see also North Carolina v. Alford, 400 U.S. 25, 38 n.ll, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (state may confer right to plead guilty by statute or by other means). Because the right is created by court rules or statutes, its scope can be limited or qualified by them.

The applicable court rule and statute are CrR 4.2(d) and RCW 9.94A.090.1 CrR 4.2(d) provides:

The court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. 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.

In addition, RCW 9.94A.090(1) states that “[t]he court, at the time of the plea, shall determine if the agreement is consistent with the interests of justice and with the prosecuting standards.” This means the right of the defendant to plead guilty at arraignment is qualified by the court’s obligations established by the court rule to determine if the plea is made competently, knowingly, voluntarily and is factually based. Furthermore, it is qualified by the court’s right to satisfy itself that the plea arrangement is consistent with the interests of justice and with prosecuting standards.

Here, Mr. Conwell submitted a written statement on plea of guilty. The court made inquiries regarding whether the plea was being made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. There is nothing in this record that would support a court’s refusal to accept the plea on those grounds. Additionally, the court made inquiries regarding the factual basis for the plea. The statements provided by Mr. Conwell and the prosecutor established such a factual basis. However, the court found the plea agreement did not adequately address the use of a weapon and the resulting death of a human being.

Although not expressly stated by the court, it is clear the court did not accept the plea because it found that the plea agreement would not be “consistent with the interests of justice and with the prosecuting standards.” This is specifically authorized by RCW 9.94A.090.

In the event the court rejects the plea agreement for these reasons, the statute provides, “the court shall, on the record, inform the defendant and the prosecutor that they are not bound by the agreement and that the defendant may withdraw the defendant’s plea of guilty, if one has been made, and enter a plea of not guilty.” RCW 9.94A-.090(1). In this case, the court did not comply with this part of the statute. The court neither informed the parties that they were not bound by the plea agreement nor did the court ask the defendant if the defendant wished to withdraw his plea of guilty.2

When the superior court rejected the plea agreement under RCW 9.94A.090, both the prosecution and Mr. Con-well were released from their respective agreements. At that point, when the court proceeded with the arraignment on the two misdemeanor charges, Mr. Conwell had the right under CrR 4.2, Martin and Ford to enter an unconditional plea of guilty to those charges, without the benefit of the prosecutor’s sentencing recommendations. Alternatively, Mr. Conwell had the right to enter a plea of not guilty with the hope and expectation that another judge would accept the plea arrangement.

Here, Mr. Conwell accepted the court’s entry of a plea of not guilty without comment or protest. There was time and opportunity for Mr. Conwell to enter an unconditional plea of guilty to the two misdemeanors, but the record is clear that he did not. Instead, he acquiesced to the court’s entry of the not guilty plea in order to pursue the benefits of his plea arrangement with the State. Martin interpreted the court rule to create a right to enter “a plea of guilty made competently, knowingly, voluntarily, unconditionally, unequivocally and on advice of counsel.” Martin, 94 Wn.2d at 5. Mr. Conwell’s plea does not meet this criteria.

In summary, the court did not err by not allowing Mr. Conwell to plead guilty on the day of his arraignment as charged in the original information. Likewise, the superior court did not err.by denying Mr. Conwell’s motion to allow the guilty plea to the original information, which he filed in response to the State’s motion to amend the information.

Did the court err by allowing the State to breach the plea agreement and amend the information?

Mr. Conwell contends the court acts in a supervisory role in plea negotiations and not as a participant. He maintains that if the court is not satisfied with the information, it may reject the plea agreement or defer its decision until further information is provided. In this case, he argues the court made no finding that the plea agreement was not in the interests of justice. Mr. Conwell argues he performed his part of the agreement by pleading guilty but the State breached the agreement by amending the original information, even in the absence of new evidence supporting the amendment. Mr. Conwell maintains the trial court committed error when it allowed the amendment.

In Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984), the United States Supreme Court considered whether a defendant has a constitutional right to have a plea bargain offer enforced after it has been accepted by a defendant. Resolving that question negatively, a unanimous court opined: “A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.” (Footnote omitted.)

“The State can revoke a plea proposal offered to a criminal defendant until such time as the defendant enters a plea or has made some act in detrimental reliance upon the offer.” State v. Bogart, 57 Wn. App. 353, 356, 788 P.2d 14 (1990). CrR 2.1(d) provides that an information may be amended at any time up to a verdict, provided that amendment does not pose undue prejudice to the defendant’s substantial rights. A defendant cannot assert error from the amendment of an information unless he or she can show prejudice. State v. Collins, 45 Wn. App. 541, 551, 726 P.2d 491 (1986), review denied, 107 Wn.2d 1028 (1987). This court reviews the amendment of an information for abuse of discretion. State v. Powell, 34 Wn. App. 791, 793, 664 P.2d 1 (1983), review denied, 100 Wn.2d 1035 (1984).

Mr. Conwell makes no showing that he relied on the plea agreement to his detriment or that he was unduly prejudiced by the amendment of the information. Moreover, when the court rejected the plea agreement, it implicitly invoked the provisions of RCW 9.94A.090 which invalidated the plea agreement and released both the defendant and the prosecutor. The court did not abuse its discretion when it granted the State’s motion to amend the information.

Brown, J., concurs.

1 Even though these are gross misdemeanors, RCW 9.94A.090 applies because Mr. Conwell initially was charged with a felony in district court. See State v. Jones, 46 Wn. App. 67, 69, 729 P.2d 642 (1986).

2 There is a distinction to be made between the defendant’s offer of a plea of guilty and the court’s acceptance of the plea. See Ford, 125 Wn.2d at 922. Here, Mr. Conwell made a proffer of a plea of guilty but it was not accepted by the court.