Opinion
No. 21687-0-III
Filed: August 4, 2005 UNPUBLISHED OPINION
Date first document (petition, etc) was filed in Court of Appeals: 01/02/2003.
Counsel for Petitioner(s), Janet G. Gemberling, Attorney at Law, PO Box 20008, Spokane, WA 99204-0008.
Counsel for Respondent(s), Gary Alan Riesen, Attorney at Law, PO Box 2596, Wenatchee, WA 98807-2596.
Carl Young Langendorf seeks relief from personal restraint imposed for his 1979 Chelan County conviction upon plea of guilty to a single count of second degree murder under both the intentional and felony murder (predicated upon second degree assault) alternatives of the second degree murder statute, RCW 9A.32.050(1)(a) and (b).
The primary question is whether Mr. Langendorf's murder conviction must be vacated in light of the Supreme Court's holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976). We deny Mr. Langendorf's petition.
FACTS
Mr. Langendorf was originally charged with two counts of second degree murder in Chelan County Cause No. 5394, and two counts of second degree burglary in Chelan County Cause No. 5402. The court granted his motion to consolidate the matters for trial. Plea negotiations ensued. In exchange for dismissal of one murder count and one burglary count, Mr. Langendorf pleaded guilty to an amended information charging one count of second degree burglary and one count of second degree murder.
The murder was charged as follows:
Count I.
That the said defendant in the County of Chelan . . . on or about the 24th day of October, 1978, did then and there unlawfully and feloniously with intent to cause the death of another person and while committing and attempting to commit the crime of assault in the second degree and in the course of and furtherance of said crime and in immediate flight therefrom stab one Albert Schweigert, a human being, thereby causing the death of the said Albert Schweigert on or about the 24th day of October, 1978, contrary to R.C.W. 9A.32.050(1)(a) and (b).
State's Br., Ex. D (emphasis added).
Mr. Langendorf stated in his written guilty plea statement: I plead guilty to the crime of Murder in the Second Degree, specifically Count I of the Amended Information. I, further, plead guilty to the crime of Burglary in the Second Degree, specifically Count II of the original Information in Chelan County Cause Number 5402.
State's Br., Ex. F, at 2. As a factual basis for the murder, Mr. Langendorf stated:
On or about the 24th day of October, 1978, I stabbed Albert Schweigert a number of times with my knife and caused his death. At the time, I intended to cause his death, but until the point of the killing, I had not planned to do this. I knew what I was doing and understood and appreciated the consequences of my acts, that is the stabbing of this human being. All acts occurred in Chelan County, Washington.
State's Br., Ex. F, at 4 (emphasis added).
The court accepted the plea and entered judgment and sentence. With regard to the murder conviction, the judgment document mirrors the language of the amended information:
Murder in the Second Degree: That the said defendant, in the County of Chelan . . . on or about the 24th day of October, 1978, did then and there unlawfully and feloniously with intent to cause the death of another person and while committing and attempting to commit the crime of assault in the second degree and in the course of and furtherance of said crime and in immediate flight therefrom stab one Albert Schweigert, a human being, thereby causing the death of the said Albert Schweigert on or about the 24th day of October, 1978, contrary to R.C.W. 9A.32.050(1)(a) and (b).
State's Br., Ex. G, at 2 (emphasis added).
The court imposed concurrent maximum sentences of life in prison for the murder and 10 years for the burglary. The Board of Prison Terms and Paroles fixed the minimum terms at 24 months for the burglary and 240 months for the murder. Mr. Langendorf remains in prison for the murder.
Mr. Langendorf initially filed this petition on January 2, 2003, as a superior court motion to reduce his sentence in light of the Andress decision. The superior court transferred the matter to this court for consideration as a personal restraint petition. See CrR 7.8(c)(2). We stayed the petition pending In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), in which the court ultimately held that the decision in Andress applied retroactively to vacate the personal restraint petitioners' convictions for second degree felony murder predicated on assault. Id. at 861. We then lifted the stay and appointed counsel to address the applicability of Andress to Mr. Langendorf's petition.
REVIEW STANDARD
To obtain relief in a personal restraint petition, Mr. Langendorf must show, by a preponderance of the evidence, actual and substantial prejudice resulting from alleged constitutional errors, or for alleged nonconstitutional errors, a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); see also Hinton, 152 Wn.2d at 858-59.
DISCUSSION
a. Application of Andress. Mr. Langendorf contends his conviction upon plea of guilty to second degree murder must be entirely vacated in light of Andress. By analogy to State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003) (guilty plea to multiple counts at same time, in same proceedings and in same document must be treated as indivisible `package deal,' absent objective evidence of contrary intent in plea agreement), Mr. Langendorf contends he was also presented with a `package deal' because he was required to plead guilty to both alternative means as charged. State v. Bowerman, 115 Wn.2d 794, 800-01, 802 P.2d 116 (1990). Since Andress has rendered his second degree felony murder crime nonexistent, Mr. Langendorf considers the entire plea invalid under Turley. He concludes that just as he was bound to a `package deal' plea, so too is the State, and the felony murder and intentional murder means must now be vacated together.
The State, on the other hand, contends Mr. Langendorf's conviction of violating both RCW 9A.32.050(1)(b) and RCW 9A.32.050(1)(a) removes him from application of Andress. When there are two or more alternate ways to commit a crime it is permissible to charge both alternatives in the same count. State v. Scott, 64 Wn.2d 992, 993, 395 P.2d 377 (1964). Under Bowerman and State v. Duhaime, 29 Wn. App. 842, 631 P.2d 964 (1981), a defendant does not have the right to plead guilty to just one alternative means of committing the crime when multiple means are charged. It is absolutely clear that Mr. Langendorf pleaded guilty to intentional murder. His conviction for second degree murder therefore remains valid.
Intentional murder and felony murder are not two different crimes, but are alternate ways of committing the single crime of second degree murder. See State v. Johnson, 113 Wn. App. 482, 487, 54 P.3d 155 (2002). When there are two or more alternate ways to commit a crime it is permissible to charge both alternatives in the same count. Scott, 64 Wn.2d at 993. There is no constitutional right to plead guilty; the right stems from CrR 4.2. State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). Under CrR 4.2, a defendant does not have the right to plead guilty to just one alternative means of committing the crime when more than one means is charged. Bowerman, 115 Wn.2d at 799. Instead, `[t]he statutory right to plead guilty is a right to plead guilty to the information as charged.' Id.
In Bowerman, the amended information charged the defendant with the single crime of first degree murder, alleging two alternative ways of committing that crime: (1) aggravated, premeditated murder, and (2) felony murder. In rejecting the defendant's argument that she had a statutory right to plead guilty to just the felony murder portion of the charges, the court explained:
The statutory right to plead guilty recognized in Martin cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged.
Id. at 801. See also Duhaime, 29 Wn. App. at 854 (defendant charged with first degree murder both by means of premeditated murder and felony murder committed in the course of kidnapping not allowed to plead guilty to a lesser offense solely to avoid the harsher punishment of the greater offense).
In Turley, the defendant pleaded guilty to one count each of first degree escape and conspiracy to manufacture methamphetamine, but was not informed that the drug charge carried a mandatory community placement term. Nearly three years later the State filed a motion to amend the judgment and sentence to include that term. Turley argued unsuccessfully that mandatory community placement was not part of his plea agreement. The court signed an order amending the sentence. Turley then moved to withdraw his guilty plea, arguing that because the plea covered both charges, he should be allowed to withdraw both pleas. Turley, 149 Wn.2d at 396-97. The court made written findings that the plea was not intelligent and voluntary because of the failure to inform Turley of the mandatory condition. The court also found that Turley would not have agreed to plead guilty had he been informed of the mandatory community placement. The court nevertheless allowed him to withdraw his plea only as to the drug charge, not the escape. Id. at 397-98.
The Supreme Court ultimately reversed, holding that absent objective evidence of a contrary intent in the agreement, a trial court must treat a plea agreement as an indivisible `package deal' when pleas to multiple counts or charges were made at the same time, described in one document, and accepted in a single proceeding. Id. at 400, 402. In reaching its conclusion, the court reiterated well settled principles that a plea agreement is essentially a contract made between a defendant and the State. Under normal contract principles, whether a contract is considered separable or indivisible is dependent upon the intent of the parties. Id. at 400. When determining intent, the court does not concern itself with unexpressed subjective intent, only objective manifestations of intent.
Id. The court explained:
Absent objective indications to the contrary in the agreement itself, we will not look behind the agreement to attempt to determine divisibility. Such a determination, after the fact, would not serve the plea negotiation process. When the defendant can show manifest injustice as to one count or charge in an indivisible agreement, the defendant may move to withdraw the plea agreement or have specific performance of the agreement.
Id.
In view of Andress, Mr. Langendorf's guilty plea was not knowing and intelligent to the extent that he pleaded guilty to the nonexistent crime of second degree felony murder predicated upon assault. Mr. Langendorf's judgment document is facially invalid to the extent it includes that legally null alternative. See Hinton, 152 Wn.2d at 858. But he must still show actual and substantial prejudice to gain relief in this petition. Id. at 858-59.
The only objective manifestation in the plea documents before us is that Mr. Langendorf intended to plead guilty to second degree murder based upon his written admission that he intentionally murdered the victim by stabbing him with a knife. There were no different facts supporting the felony murder alternative accomplished by the same knife assault. As the State contends, it is clear that Mr. Langendorf pleaded guilty to second degree intentional murder. In this situation, reference in the plea documents and judgment to the nonexistent felony murder alternative is extraneous. Thus, consistent with Bowerman, Mr. Langendorf validly pleaded guilty to the single charge of second degree murder, not to an indivisible multiple crime `package deal' like in Turley. We reject Mr. Langendorf's argument.
Mr. Langendorf additionally argues that in light of Andress, the prosecutor committed an abuse of discretion and violated his due process rights by charging him with multiple means of committing second degree murder as a way to ensure that if one means became invalid, the plea or conviction would survive on the remaining alternative. He argues this practice of compelling a defendant to plead guilty even though one of the alternative means is legally deficient is fundamentally unfair and should not be given judicial deference in the form of upholding the intentional murder portion of his conviction.
This contention stemming from Andress does not implicate the facial validity of the judgment under RCW 10.73.090(1), but theoretically invokes consideration under the intervening case law exception to the one-year time limit for collaterally attacking a judgment and sentence. See RCW 10.73.100(6).
The prosecutor has broad discretion in charging and plea bargaining decisions. See, e.g., State v. Moen, 150 Wn.2d 221, 227, 76 P.3d 721 (2003). But that discretion is not `unfettered'; the prosecutor's discretionary authority may not be exercised in a manner that violates the accused's due process rights. Id. (citing Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985)); see also State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997) (since plea agreements concern fundamental rights of the accused, constitutional due process rights also apply).
Mr. Langendorf's due process argument appears to assume that the State extracted a plea of guilty to second degree intentional murder when he could have argued that no evidence supports guilt for that alternative means of committing the crime. But again, Mr. Langendorf admitted in his statement on plea of guilty that he intentionally killed the victim. His cited cases involving review of the sufficiency of the evidence after trial are thus inapposite. State v. Bland, 71 Wn. App. 345, 353-54, 860 P.2d 1046 (1993) (when defendant tried under alternative means, jury verdict cannot stand unless reviewing court can determine verdict founded upon method supported by substantial evidence); State v. Maupin, 63 Wn. App. 887, 894, 822 P.2d 355 (1992) (when court cannot determine which alternative jury relied on, verdict cannot stand unless evidence sufficient to support both alternatives).
Mr. Langendorf also analogizes to Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), where the prosecutor abused charging discretion and violated the defendant's due process rights by filing a felony indictment when the defendant convicted of a misdemeanor for the same incident appealed and exercised the right to trial de novo in superior court. But no such untenable intent is evident here, particularly when the Andress decision overruling longstanding case law was issued some 23 years after Mr. Langendorf's plea.
We perceive no abuse of charging discretion or violation of Mr. Langendorf's due process rights so as to undermine the validity of his intentional murder conviction.
In a related argument, Mr. Langendorf next contends in the alternative that he should be allowed to withdraw his guilty plea based upon the claimed manifest injustice of involuntary plea brought on by lack of knowledge that second degree felony murder was a nonexistent crime. He claims prejudice on the theory he was required to plead as charged to both means, yet it cannot now be inferred that he would have pleaded guilty had the sole charge been for intentional murder that was perhaps subject to challenge for insufficient evidence. He thus says he misunderstood the consequences of his plea as related to intentional murder, and the resulting manifest injustice must permit him to withdraw his plea. We reject the arguments.
Due process requires that a guilty plea be knowing, voluntary, and intelligent. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). A guilty plea cannot be knowing and intelligent if the defendant has been misinformed about the elements of the offense. See Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (plea invalid when defendant unaware his conduct failed to satisfy element of offense); In re Pers. Restraint of Thompson, 141 Wn.2d 712, 10 P.3d 380 (2000) (plea invalid when defendant did not know that charge to which he pleaded was enacted after his criminal conduct); In re Pers. Restraint of Hews, 99 Wn.2d 80, 660 P.2d 263 (1983) (defendant must understand that his alleged criminal conduct satisfies the elements of the offense); State v. Chervenell, 99 Wn.2d 309, 318-19, 662 P.2d 836 (1983) (plea involuntary if defendant lacks understanding of law in relation to facts); In re Pers. Restraint of Keene, 95 Wn.2d 203, 209, 622 P.2d 360 (1980) (same).
The State has the burden of proving validity of the guilty plea under a totality of the circumstances test. State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996). But the defendant bears the burden of proving that manifest injustice has occurred — one that is "obvious, directly observable, overt, [and] not obscure." Turley, 149 Wn.2d at 398 (alteration in original) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)). An involuntary plea independently establishes a manifest injustice that warrants plea withdrawal. Turley, 149 Wn.2d 395; Taylor, 83 Wn.2d at 598.
As discussed, under Andress and Hinton, Mr. Langendorf cannot have validly pleaded guilty to the nonexistent crime of second degree felony murder predicated on assault. But he admitted in writing when entering his standard guilty plea that he intentionally murdered the victim with a knife. He supplied the factual basis. The plea document objectively shows that he understood those facts in relation to the law, i.e., the intent alternative of second degree murder, RCW 9A.32.050(1)(a). There were no different facts supporting the legally nonexistent alternative of felony murder predicated on assault. The only indication is that Mr. Langendorf's plea under the intent alternative was knowing and voluntary. See also State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998) (when defendant has read and signed a plea statement, it creates a strong presumption that the plea is voluntary).
In this situation, the Andress decision as intervening case law has not illuminated any `obvious, directly observable, overt, [and] not obscure' manifest injustice warranting withdrawal of Mr. Langendorf's plea to second degree intentional murder. He shows no actual or substantial prejudice arising from the plea proceedings. His claim of manifest injustice is, in essence, a conclusory allegation not subject to further review in a personal restraint petition. Cook, 114 Wn.2d at 813-14.
b. Double Jeopardy. Mr. Langendorf contends that failure to vacate the second degree murder conviction when one of the charged alternatives is invalid violates double jeopardy. He states that he has been imprisoned for 25 years on the `merged' conviction. But now that the second degree felony murder has been ruled a nonexistent crime, the State is in effect attempting to impose a `new' second punishment for second degree intentional murder. If he had been convicted only under felony murder, his conviction would be vacated under Andress. He thus concludes that to keep him incarcerated solely for intentional murder constitutes additional punishment and double jeopardy. We disagree.
This claim theoretically invokes consideration under the illegal sentence exception to the RCW 10.73.090(1) one-year time bar for collaterally attacking the judgment. See RCW 10.73.100(5).
The fifth amendment to the United States Constitution states: `nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.' Similarly, article I, section 9 of the Washington Constitution declares: `No person shall be . . . twice put in jeopardy for the same offense.' These double jeopardy clauses each prohibit: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense imposed in the same proceeding. See State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000).
Mr. Langendorf pleaded guilty to the single crime of second degree murder. He received one conviction and one sentence. His sentence does not change simply because the felony murder alternative is invalid. He will not serve a `new' sentence, but will merely finish the second degree murder sentence already validly imposed. There is no fundamental defect in his sentence and no double jeopardy violation when the intentional murder and felony murder alternatives were merged into one conviction and one sentence. Johnson, 113 Wn. App. at 488.
In summary, the Andress decision does not invalidate Mr. Langendorf's conviction and sentence upon plea of guilty to second degree intentional murder. He fails his burden under Cook, 114 Wn.2d at 813.
Accordingly, we deny the petition but remand to the trial court for the limited purpose of deleting reference in the judgment and sentence to second degree felony murder, RCW 9A.32.050(1)(b).
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KURTZ, J., Concur.