State of Washington v. Kyle Johnson ( 2018 )

FILED
APRIL 3, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34605-6-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
KYLE JOHNSON, )
)
Appellant. )
PENNELL, A.C.J. — Kyle Johnson appeals his guilty pleas and convictions
pertaining to two counts of custodial assault. We decline review of his claims under the
doctrine of res judicata and RAP 2.5.
BACKGROUND
Mr. Johnson’s assault convictions arose from an incident that occurred on
December 17, 1988. Trial was scheduled for October 9, 1989; however, after June 26,
1989, Mr. Johnson was charged with aggravated murder. State v. Johnson, noted at
66 Wash. App. 1044, slip op. at 1 (1992). On October 9, 1989, the State and Mr. Johnson
entered into a plea agreement. The agreement provided Mr. Johnson’s standard sentence
range was 0-12 months based on an offender score of 0. It also provided:
No. 34605-6-III
State v. Johnson
In consideration of defendant entering guilty pleas . . . plaintiff
agrees to make no evidentiary use of these convictions in its case in chief
under cause number 89-1-00050-6 in which the defendant is charged with
aggravated murder in the first degree; however, plaintiff reserves any
evidentiary use of these convictions permitted by the rules of evidence or
other authority for impeachment, rebuttal, or sentencing in this or any other
cause, including the defendant’s above referenced prosecution for
aggravated murder in the first degree.
Johnson, slip op. at 1-2 (alteration in original). During the plea hearing, the judge told
Mr. Johnson, “There is no right to appeal from the plea of guilty,” to which Mr. Johnson
responded “Yes.” Clerk’s Papers at 30. The trial court accepted Mr. Johnson’s guilty
plea and deferred sentencing until after the aggravated murder trial.
Prior to sentencing, Mr. Johnson moved to withdraw his guilty plea. Mr. Johnson
claimed that when he pleaded guilty he failed to understand how his plea could be used
against him in his upcoming murder trial. The trial court denied Mr. Johnson’s motion
and reserved its ruling on the admissibility and use by the State of the assault convictions
in the murder trial under ER 404 or ER 609.
On June 8, 1990, Mr. Johnson appealed the trial court’s decision to this court.
During the pendency of the appeal, Mr. Johnson pleaded guilty to the pending murder
charge and the trial court conducted a combined sentencing hearing for Mr. Johnson’s
assault and murder convictions.
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State v. Johnson
At Mr. Johnson’s sentencing hearing, the State represented that Mr. Johnson’s
“standard range would be three to eight months.” Report of Proceedings (June 28, 1990)
at 6. The trial court accepted this and sentenced Mr. Johnson to 150 days for each count,
to run concurrently with his aggravated murder sentence, based on an offender score of
one and the range being three to eight months. The court did not impose a term of
community custody.
Mr. Johnson did not appeal the judgment and sentence subsequent to his
sentencing hearing. However, the appeal regarding the order denying Mr. Johnson’s
motion to withdraw his guilty plea remained pending and a decision was filed by this
court on July 21, 1992. In that appeal, Mr. Johnson argued: (1) he did not understand
how his guilty plea on the assault charges could be used against him at the murder trial,
and (2) the State’s illusory or deceptive promise induced him into entering the plea.
Johnson, slip op. at 2-4. Our court denied Mr. Johnson’s claim for relief, finding the
State’s plea agreement promise was neither illusory nor deceptive. Id. at 5. The upshot
of our court’s decision was that Mr. Johnson had not shown his plea was involuntary.
On April 22, 2016, Mr. Johnson filed a notice of appeal of his 1990 judgment and
sentence. Our court commissioner granted his motion to extend the time to appeal
because Mr. Johnson was affirmatively misadvised in 1989 of his right to appeal the
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State v. Johnson
guilty plea. Commissioner’s Ruling, State v. Johnson, No. 34605-6-III (Wash. Ct. App.
Dec. 13, 2016).
ANALYSIS
Mr. Johnson argues his assault convictions should be reversed because his guilty
plea was involuntary and his arraignment was not conducted in open court. The first
claim is barred by stare decisis. The second claim fails as it was unpreserved at trial and
Mr. Johnson has not established a basis for review under RAP 2.5(a)(3).
Guilty plea challenge and res judicata
The doctrine of res judicata applies in criminal cases. State v. Dupard, 93 Wash. 2d
268, 273, 609 P.2d 961 (1980) (citing State v. Peele, 75 Wash. 2d 28, 30, 448 P.2d 923
(1968)). It serves to prevent relitigation of already determined causes, curtail multiplicity
of actions, prevent harassment in the courts and inconvenience to the litigants, and
promote judicial economy and judicial finality. Dupard, 93 Wash. 2d at 272. Res judicata
occurs when a prior judgment has a concurrence of identity with respect to the subject
matter, cause of action, persons and parties, and the quality of the persons for or against
whom the claim is made. Rains v. State, 100 Wash. 2d 660, 663, 674 P.2d 165 (1983)
(citing Seattle-First Nat’l Bank v. Kawachi, 91 Wash. 2d 223, 225, 588 P.2d 725 (1978)).
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State v. Johnson
Mr. Johnson previously appealed his guilty plea to this court, arguing it was
involuntary. At the time of his previous appeal, Mr. Johnson had access to all the
information he now claims compels a decision in his favor. Our court considered Mr.
Johnson’s claims on the merits back in 1992 and ultimately ruled Mr. Johnson had failed
to show his plea was involuntary. The voluntariness of Mr. Johnson’s plea therefore must
be considered the law of the case. RAP 12.2. Mr. Johnson has not demonstrated the
interests of justice would be served by reopening our prior decision.
Courtroom closure
Apart from the attack on his guilty plea, Mr. Johnson claims his convictions are
invalid because arraignment did not occur in open court. This is an issue that was not
raised in the prior appeal. Nor was it raised with the trial court. It therefore will be
reviewed on appeal only if Mr. Johnson can show a manifest error implicating the
constitutional right to a public trial. RAP 2.5(a)(3).
The manifest error standard requires the trial record be sufficient to fully analyze
the defendant’s claims. State v. Koss, 181 Wash. 2d 493, 502-03, 334 P.3d 1042 (2014).
We recognize that, beyond the docket entries, it appears there is no longer a record of the
arraignment available for transmittal by the trial court. However, Mr. Johnson has not
submitted any other record supporting his claim that the arraignment did not occur in
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No. 34605-6-111
State v. Johnson
open court. Id. at 503-04. We will not excuse his failure to do so. Id. at 503 (An
"appellant bears the responsibility to provide a record showing that such a closure
occurred in the first place."). Given this state of the record, id. at 501-02, we decline
review of Mr. Johnson's courtroom closure claim under RAP 2.5.
CONCLUSION
Mr. Johnson's judgment of conviction is affirmed.
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.
Pennell, A.CJ.
WE CONCUR:
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