State v. Martin , 94 Wash. 2d 1 ( 1980 )

Stafford, J.

In this case we are concerned with a defendant's right to plead guilty to a charge of premeditated murder in the first degree (hereinafter first degree murder) and the consequences of such a plea.

Petitioner, Donald Martin, asserts a right to plead guilty to a charge of first degree murder and thus avoid the possible imposition of the death penalty resulting from a jury trial. Respondent State contends that petitioner cannot plead guilty to first degree murder or, alternatively, that after pleading guilty, the special sentencing procedures set forth in RCW 10.94 authorize the possible imposition of the death penalty.

As discussed below, however, it is clear the present death penalty statute does not prevent a defendant from exercising the right to plead guilty to any crime with which he or she is charged. It is equally clear that after pleading guilty to first degree murder, a defendant is no longer subject to the possible imposition of the death penalty under RCW 10.94. Consequently we reject the State's contentions.

A brief review of the facts is necessary to bring the statutory issues into focus. On July 3, 1979, Donald Martin was arraigned on a charge of first degree murder in the death of Ivy Brown. Martin orally pleaded guilty and defense counsel presented the court with Martin's unsigned "Statement of Defendant on Plea of Guilty" pursuant to CrR 4.2(g).

Defense counsel also informed the court he had advised Martin that, as a matter of law, the maximum sentence imposable following a plea of guilty was life imprisonment with the possibility of parole. See RCW 9A.32.040(3); RCW 9.95.115. The court was asked to so rule on the legal consequences of the guilty plea. The State argued, however, that it had 30 days after arraignment within which to file a notice of intent to request the death penalty. RCW 10.94-.010. Further, the State urged the court to withhold action on the requested ruling to enable it to seek the death penalty.

The arraignment was continued and on July 17, 1979, the trial judge refused to accept Martin's guilty plea on the sole ground that the State's right to request the death penalty prevented such an admission of guilt. Accordingly, Martin made no plea to the charge at issue.

On July 20, the State filed an amended information in which Martin was charged with first degree murder in both the Brown death and the death of John Haasager. Notice of intent to request the death penalty was filed in both cases. Martin was arraigned on the amended information on July 23. Since the trial court had refused to accept his earlier plea of guilty in the Brown case, Martin stood mute and the court entered a plea of not guilty for him in the Haas-ager case.

The trial court proceedings were stayed pending a motion for discretionary review in this court. Martin continues to assert a right to plead guilty to the charge of first degree murder. This plea, he contends, will result in the imposition of a maximum sentence of life imprisonment with a possibility of parole and thereby avoid the possibility of having a jury impose the death sentence. Three basic issues are presented: (1) whether, under the existing law of this state, petitioner may plead guilty to first degree murder; (2) if he can plead guilty, whether a special sentencing jury as specified in RCW 10.94 may consider imposition of the death penalty provided by RCW 9A.32.040(1); and (3) the nature of the penalty imposable when a defendant pleads guilty to first degree murder as well as the application of RCW 9A.32.040(3) and RCW 9.95.115.

I

Right To Plead Guilty

At the outset the State contends petitioner does not have a right to plead guilty to first degree murder. We do not agree. While a defendant does not have a constitutional right to plead guilty, it is well established that the State may confer such a right by statute or by other means. North Carolina v. Alford, 400 U.S. 25, 38 n.11, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). In this state such a right has been established by Supreme Court rule.¹ CrR 4.2(a) provides for the types of pleas which may be accepted at arraignment.

A defendant may plead not guilty, not guilty by reason of insanity or guilty.

Although the State appears to argue to the contrary, we 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. Moreover, unlike the law in some states, our rules and statutes nowhere suggest that prosecutorial approval is required before a defendant may plead guilty. Accordingly, we hold that in this state, a criminal defendant has the right to plead guilty unhampered by a prosecuting attorney's opinions or desires.

The State next contends that insofar as CrR 4.2(a) may appear to be inconsistent with RCW 10.94 (the Washington death penalty act) the criminal rule governing guilty pleas is impliedly overruled by the statutory death penalty scheme. The argument is not well taken. The State's analysis rests on an unsubstantiated assumption that the legislature must have intended to repeal CrR 4.2(a). Implied repeals are not favored, however. Jenkins v. State, 85 Wn.2d 883, 886, 540 P.2d 1363 (1975); Tardiff v. Shoreline School Dist., 68 Wn.2d 164, 411 P.2d 889 (1966). This is particularly true where, as here, CrR 4.2(a) does not conflict with RCW 10.94.

In oral argument, the State relied on the second clause of RCW 10.01.060 which expands the methods of assessing guilt to include trial by a judge except in capital cases:

[E]xcept in capital cases, where the person informed against ... for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.

This court has long interpreted the clause as preventing a defendant upon whom the death penalty might be imposed from waiving a jury trial in favor of a trial before a court. State v. Baker, 78 Wn.2d 327, 474 P.2d 254 (1970); Brandon v. Webb, 23 Wn.2d 155, 160 P.2d 529 (1945). The clause thus limits the trial options available to a defendant in capital cases. The clause does not, however, affect the other methods of assessing guilt set forth in the first clause of RCW 10.01.060:

No person informed against ... for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court. . .

We have never interpreted RCW 10.01.060 to prohibit a defendant charged with a capital offense from pleading guilty. Indeed, the first clause of RCW 10.01.060 supports the rule that a defendant may, in fact, plead guilty. This reasoning is supported by RCW 10.49.010 in effect in 1951 when the second clause of RCW 10.01.060 was adopted. RCW 10.49.010 clearly anticipated guilty pleas by defendants charged with murder. It provided:

if the defendant plead guilty to a charge of murder, a jury shall be impaneled to . . . determine the degree of murder and the punishment therefor.

(Italics ours.)² See State v. Horner, 21 Wn.2d 278, 150 P.2d 690 (1944).

To adopt the State's suggestion that RCW 10.01.060 may somehow be expanded to prevent a capital defendant from pleading guilty would require judicial legislation and result in the rejection of years of prior practice under RCW 10.01.060 and RCW 10.49.010. We find that RCW 10.01.060 does not prevent a defendant charged with a capital offense from pleading guilty to the crime with which he or she is charged.

The State next contends Martin's plea of guilty was not "unconditional". Without question the plea was dependent upon a correct judicial interpretation of the statutory scheme. Yet, it would be unwarranted to consider as "conditional" a guilty plea which can be accepted only upon a correct interpretation of the law. To hold otherwise would improperly limit a defendant's right to be correctly informed of the possible sentencing consequences of the plea before waiving his or her right to a jury trial. A defendant has a right to be informed of the consequences of his or her plea of guilty before the plea is accepted. CrR 4.2; Woods v. Rhay, 68 Wn.2d 601, 605, 414 P.2d 601 (1966). Martin stood ready to enter an unconditional plea of guilty to first degree murder had the trial court correctly informed him that, pursuant to RCW 9A.32.040(3) and RCW 9.95.115, the maximum sentence imposable was life imprisonment with the possibility of parole.

We note in passing that an "unconditional" plea is not to be equated with an "unequivocal” plea. In Woods v. Rhay, supra at 605, we held that a guilty plea must be "freely, unequivocally, intelligently and understandingly made in open court by the accused person with full knowledge of his legal and constitutional rights and of the consequences of his act." A plea is "equivocal" "whenever a defendant attempts to make a plea which by its very wording couples a protestation of innocence with an assertion of guilt ..." State v. Stacy, 43 Wn.2d 358, 363, 261 P.2d 400 (1953); see State v. Mullin, 66 Wn.2d 65, 66, 400 P.2d 770 (1965); State v. Knutson, 11 Wn. App. 402, 404, 523 P.2d 967 (1974); State v. Watson, 1 Wn. App. 43, 45, 459 P.2d 67 (1969). It is clear Martin's proffered plea was not equivocal.

II

Special Sentencing in Guilty Plea Cases Under RCW 10.94

The State alternatively contends the trial judge properly refused to accept Martin's guilty plea because a capital defendant remains subject to the death penalty even upon a plea of guilty. It is asserted we should imply the existence of a special sentencing provision in which the death penalty could be imposed in guilty plea cases. This, it is suggested, could be accomplished by the impaneling of a special jury to assess punishment, similar to that provided for in RCW 10.94.020(2). This argument is without merit for two reasons. First, it stems from and is dependent upon a series of cases decided at a time when the state statutory scheme permitted guilty pleas in capital cases and required only that a jury be subsequently impaneled to determine the degree of murder and the death penalty issue. E.g., State v. Baker, 78 Wn.2d 327, 334, 474 P.2d 254 (1970). Since RCW 10.94 now specifically requires that the same trial jury be reconvened to decide the issue of death, the prior cases are wholly inapposite. Second, the plain language of RCW 10.94.020(2) clearly forecloses the possibility of impaneling a special jury to decide the death penalty issue after a capital defendant has pleaded guilty. RCW 10.94.020(2) provides that if "the trial jury returns a verdict of murder in the first degree . . . the trial judge shall reconvene the same trial jury to determine" whether the death penalty will be imposed. (Italics ours.) The statute's mandate is clear. The same trial jury must be reconvened to determine the death issue. The proposed special substitute jury would be neither the "trial jury" which had returned a first degree murder verdict nor the "same trial jury" "reconvened" as mandated by the statute. Thus, there simply is no current statutory provision that authorizes the impaneling of a special jury to decide the death penalty issue when a capital defendant pleads guilty.

Clearly the legislature did not anticipate the possibility that an accused might plead guilty to a charge of first degree murder. Thus, it simply failed to provide for that eventuality. As attractive as the State's proposed solution may be, we do not have the power to read into a statute that which we may believe the legislature has omitted, be it an intentional or an inadvertent omission. Auto Drivers Local 882 v. Department of Retirement Sys., 92 Wn.2d 415, 421, 598 P.2d 379 (1979); Vita Food Prods., Inc. v. State, 91 Wn.2d 132, 134, 587 P.2d 535 (1978); Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 403, 573 P.2d 10 (1977). The statutory hiatus is unfortunate. Nevertheless, it would be a clear judicial usurpation of legislative power for us to correct that legislative oversight.

In the final analysis since, on a plea of guilty to first degree murder, a trial judge cannot "reconvene the same trial jury" there is simply no statutory means provided by which the death penalty can be imposed.

Ill

The Nature of the Imposable Penalty

The trial court should have informed Martin that under existing law the maximum penalty on a plea of guilty to first degree murder is life imprisonment with a possibility of parole. RCW 9A.32.040(3); RCW 9.95.115. As noted previously, the more severe provisions of RCW 10.94 and RCW 9A.32.040(1) and (2) only apply to those cases in which a trial judge can reconvene the same trial jury.

Assuming the trial court was satisfied the guilty plea was made competently, knowingly and voluntarily, it should have accepted Martin's plea of guilty to the Brown murder charge. The case is therefore remanded for the rearraignment of Martin on the charge of first degree murder in the Brown case and for further proceedings consistent with this opinion.

Wright, Brachtenbach, Dolliver, and Williams, JJ., concur.

1 We also note that RCW 10.40.060 entitles the defendant to 1 day after arraignment in which to plead to the indictment or information. The statute provides:

"In answer to the arraignment, the defendant may move to set aside the indictment or information, or he may demur or plead to it, and is entitled to one day after arraignment in which to answer thereto if he demand it.”

2 It should be noted RCW 10.94.020(2) does not provide that "o jury shall be impaneled" (italics ours) as was formerly the case in RCW 10.01.060. Rather, the current statute provides "the trial judge shall reconvene the same trial jury’. (Italics ours.)