Opinion
No. 22694-8-III
Filed: April 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-01763-1. Judgment or order under review. Date filed: 01/09/2004. Judge signing: Hon. Jerome J. Leveque.
Counsel for Appellant(s), Carol A. Elewski, Attorney at Law, PO Box 823, East Olympia, WA 98540-0823.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Steven M. Pennington entered a guilty plea for first degree theft without the court establishing a factual basis for the plea or informing him of the direct consequences. Accordingly, we reverse.
FACTS
Mr. Pennington was first charged with two counts of stalking Sherry Jackson and two counts of violating a domestic violence protection order. By amended information he was charged with first degree theft of Ms. Jackson's phone. The amended charge caption referred to `RCW 9A.56.030(1)(A) CODV-F.' Clerk's Papers at 39.
Mr. Pennington entered a guilty plea without admitting any facts pursuant to In re Barr, 102 Wn.2d 265, 684 P.2d 712 (1984), and North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Although the court stated it found a factual basis for the plea, the plea record shows neither the supporting facts nor any domestic violence connection to the alleged victim. Domestic violence was never mentioned.
At a later sentencing, Mr. Pennington and the court apparently discovered the domestic violence nature of the charge. After explanation by the State, the court, over Mr. Pennington's objection, entered a judgment and sentence convicting him of First Degree Theft — Domestic Violence. The court imposed a domestic violence protection order, prohibiting Mr. Pennington from having contact with Ms. Jackson.
ANALYSIS
The dispositive issue is whether the trial court erred in accepting Mr. Pennington's Alford plea without first establishing an underlying factual basis for the first degree theft charge and informing him of all direct consequences of his plea.
In passing, we note Mr. Pennington's argument that the information was insufficient in form to notify him of the domestic violence nature of the charge. But, Washington's domestic violence statutes do not create distinct crimes with separate elements. State v. Goodman, 108 Wn. App. 355, 358-59, 30 P.3d 516 (2001); State v. O.P., 103 Wn. App. 889, 892, 13 P.3d 111 (2000). Thus, our courts have previously rejected this argument. See O.P., 103 Wn. App. at 891-92 (upholding a conviction for fourth degree assault (domestic violence), where caption designated domestic violence); see also Goodman, 108 Wn. App. at 358-59.
We review de novo the circumstances surrounding the entry of a guilty plea. Young v. Konz, 91 Wn.2d 532, 535-36, 588 P.2d 1360 (1979). Due process requires that a court shall not accept a guilty plea without determining that a defendant understands the nature of the charges. CrR 4.2(d); In re Pers. Restraint of Ness, 70 Wn. App. 817, 821, 855 P.2d 1191 (1993). Due process also requires that defendants understand the direct consequences of pleading guilty, those that have a `definite, immediate and largely automatic effect on the range of the defendant's punishment.' Ness, 70 Wn. App. at 822 (quoting Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir. 1973).
The domestic violence protection order carries unique restrictions and potential sanctions. See RCW 10.99.050. A no-contact order after a guilty plea carries direct consequences. See State v. Wilson, 117 Wn. App. 1, 11, 75 P.3d 573, review denied, 150 Wn.2d 1016 (2003); see also O.P., 103 Wn. App. at 892. For example, restricting Mr. Pennington's ability to earn early release time is a direct consequence of pleading guilty to the domestic violence-related charge. The State does not dispute Mr. Pennington was not informed of all direct consequences prior to pleading guilty. Therefore, Mr. Pennington could not make a knowing, intelligent and voluntary plea under the circumstances.
Additionally, a sentencing court must determine a factual basis exists prior to accepting a plea. CrR 4.2(d). `A factual basis exists if there is sufficient evidence for a jury to conclude that the defendant is guilty.' Ness, 70 Wn. App. at 824. The court may consider any reliable source of information in the record, including the State's factual statement, to determine whether the plea is supported by sufficient evidence. Id. When a defendant enters an Alford plea, `the trial court must exercise extreme care to ensure the plea satisfies constitutional requirements. Id. (citing In re Montoya, 109 Wn.2d 270, 277-78, 744 P.2d 340 (1987)). `An Alford plea is valid if `the record before the judge contains strong evidence of actual guilt.'' Id. (quoting Alford, 400 U.S. at 37) (emphasis added).
The `judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge.' In re Pers. Restraint of Keene, 95 Wn.2d 203, 209, 622 P.2d 360 (1980). The factual basis must be developed at the time the plea is taken, not deferred until sentencing. Id.
Here, although the court stated it found a factual basis for Mr. Pennington's plea, the record shows no facts were developed for the court. Neither the State nor the court recited any underlying facts on the record. Mr. Pennington's statement on plea of guilty is silent as to a factual basis for his plea. In short, we have no facts to review to determine if any evidence, let alone strong evidence, supported Mr. Pennington's guilt. See Ness, 70 Wn. App. at 824. It was not until sentencing that any effort was made to describe the domestic violence nexus to the charged crime. As noted, that is too late.
In sum, we vacate Mr. Pennington's plea because it does not meet the knowing, intelligent, and knowing due process requirements.
Reversed and remanded.
A majority of the panel has determined 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.
Kato, C.J. and Sweeney, J., Concur.