Petition — Washington v. Dyer

Supreme Cqurt, U.S.

80-340

FILED

AUG1 9 1980

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF WASHINGTON, PETITIONER

V.

WILLIAM O. DYER, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

C. DANNY CLEM

Prosecuting Attorney

RONALD A. FRANZ

Deputy Prosecuting

Attorney

KENNETH G. BELL

Deputy Prosecuting

Attorney

Kitsap County Courthouse

614 Division Street

Port Orchard, WA 98366

Telephone: (206) 876-7174

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF WASHINGTON, PETITIONER

V.

WILLIAM 0. DYER, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

C. DANNY CLEM

Prosecuting Attorney

RONALD A. FRANZ

Deputy Prosecuting

Attorney

KENNETH G. BELL

Deputy Prosecuting

Attorney

Kitsap County Courthouse

614 Division Street

Port Orchard, WA 98366

Telephone: (206) 876-7174

QUESTION PRESENTED

Does due process require that

a prior felony conviction which arose

from a plea of guilty entered prior to

‘the date of decision in Boykin v. Alabama

be subject to collateral attack by a

criminal defendant in a subsequent

proceeding for enhanced punishment under

a state habitual criminal statute on the

ground that the procedures for acceptance

of the prior plea were not in compliance

with the requirements announced in that

decision?

TABLE OF CONTENTS

QUESTION PRESENTED.......eee00.

TABLE OF ee. ».

TABLE OF AUTHORITIES. .ccccsces

Table of CaseS..ccccccces

Other Authority...ccccoee

OPINION BELOW cccccccccececeece

ES ea

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. @eeeeoeoeee28?

STATEMENT OF THE CASE..ccccces

REASONS FOR ALLOWANCE OF WRIT.

I. THE DECISION OF THE

‘ COURT BELOW I[S AN

ERRONEOUS APPLICATION

TIONAL PRINCIPLES....

II. THE DECISION BELOW IS

BASED UPON FEDERAL CON-

_ STITUTIONAL PRINCIPLES

BY AN INDEPENDENT AND

ADEQUATE STATE GROUND

COM te as 60 008 60666068066 O6e

APPENDIX

Page

19

24

TABLE OF AUTHORITIES

Table of Cases

Boykin v. Alabama, 345 U.S, 238,

89 S.Ct. 1709, 23 L.Ed.2d

Page

274 (1969) eccccccccccccecceccoe $,6,7,428,

Burgett v. Texas, 389 U.S. 109,

88 S.Ct. 258, 19 L.Ed.2da 319

13,18,19,

20

(1967) .csceeeeeececeeereeeees 1096 il, 18,

California v. Green, 399 U.S. 149,

90 S.Ct. 1980, 26 L.Ed.2d 849

CUSTS) cccccescocceesseesesooos

Deleware v. Prouse, 440 U.S. 648,

S.Ct. 1391, L.Ed.2d

(1979) ccccccccececccccces

Film Fox He ve Muller,

U.S. 0 ’ $.Ct. 1 “s

80 L.Ed. 158 C19sS dcceocecsecee

Gideon v. Wainwright, 372 U.S.

335, 83 8.Ct.q 792, 9 LeEd.2d

799 (29S S) ccccccvcesceocsoseces

Halliday v. United States, 394

U.S. 831, 89 S.Ct. 1498, 23

LeEde2d 16 (1969) wccccccsecees

Henderson v. Morgan, 426 U.S. 3

637, 96 S.Ct. 3553, 49 L.Ed.2d

108 Ci9TE) cccccceccoeceeessece

Kercheval v. United States, 274

U.S. 220, a7 §.Ct. 582, 71

L.Ed. 1109 (1927) ccccccccccece

iii

19

21

21,22,23

19

9,11,14

12

19

20

ee ee — ——— -— - — - = — > — ao PTE ——

.

.

Kitchens v. Smith, 201 U.S. 847,

91 S.Ct. 1089, 28 L.Ed.2d 519

LLSTA) oes Ooostbocos es eeecoecoce ll

Lewis v. Unitei States, 0.8.

, 100 S.Ct. 915,

L.E£d.2d (1980) ecccccccecce 13,15,18,

22

McCarthy v. United States, 394

. U.S. 4 9, 9 S.Ct. ’ 22 L.Ed.2d

418 (T9ES) cdecceocsceccecesocece 12

Miesbauer v. Rhay, 79 Wn.2d 505,

487 P.2d 1046 (1971) wccccccees .° 21

Moss v. Craven, 427 F.2d 139

(9th Cif. 1970) cocccccccccccecs , 12

North Carolina v. Butler, 441

U.S. 369, 99 S.Ct. 1755,

L.Ed.2d C1979) coccooccece 22

Oregon v. Haas, 420 U.S. 714,

95 S.Ct. 1215, 43 L.Ed.2d 570

(1975) wceccceccccccccesccccecs 21,22

——- v. Gonzales, 38 Co.A. 522,

P. Tebeeocesteeocs 16

Southern Railroad Co. v. Se

34 U.S. l, 7 $.Ct. ’

L.Ed.2d 3 (29SO) cccccecceoecse ° 23

State v. Cimini, 53 Wash. 268,

P. 9 SOS) cccccececsece 20

State v. Holsworth, 93 Wn.2d 143,

P. d SO) ccccccccces 6,8,9,10,

11,15,18,19

State v. LeBlanc, 315 So.2d 654

(La. B90 6666660060606 0660060 17

iv

_ —_— +

State v. Taft, 49 Wn.2d 98, 297

P.2d 1116 PASSO ehedeosrerceseceos

Wood v. Morris, 87 Wn.2d 50l,

P. d 2 FEOF Ohecececesccs

Woods v. Rhay, 68 Wn.2d 601,

14 P.2d 01 29SEC Pecceccccese

Young v. Konz, 91 Wn.2d 532,

P. d 60 Pty) ) ae

Zacchini v. Scripps-Howard

Broadcasting CoO., 445 U.S.

562, 97 S.Ct. 29

49, 53

L.Ed.2d 965 CEOs Th eesectececoos

Other Authority

United States Constitution,

Fourteenth Amendment....-.ceces

Washington State Constitution, ,

Article 1, Section 3...ccceeee

Revised Code of Washington

Denmewteasocecebdo0e6neeseoees

18 U.S.C. Section 1202(a)(1)....

18 0.8.C. Section basitaleccecece

20

12

20,21

23

22

The Petitioner, the State of

Washington, request that a writ of

certiorari issue to review the judgment

and opinion of the Court of Appeals of

the State of Washington, Division II, |

issued on March 21, 1980.

OPINION BELOW

The opinion of the Court of

“Appeals of the State of Washington,

Division II, is unreported. A copy is

appended.

JURISDICTION

The judgment of the Court of

Appeals of the State of Washington,

Division II, was filed on March 2l,

1980. The timely motion for reconsidera-

tion was denied on April 18, 1980. A

timely petition for: review in the Supreme

Court of the State of Washington was

. denied on June 20, 1980, and this petition

for certiorari was filed within sixty

days of that date. This Court's juris-

diction is invoked under 28 U.S.C.

Section 1257(3).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment to

the United States Constitution provides

in relevant part:

« e e nor shall any State

deprive any person of life,

liberty, or property without |

due process of law...

Article 1, Section 3, of the

Constitution of the State of Washington

provides:

No person shall be deprived of

life, liberty, or property,

without due process of law.

The Revised Code of Washington,

9.92.090, provides in relevant part:

Every person convicted in this

state of any crime of which

fraud or intent to defraud is

an element, or of petit larceny,

or of any felony, who shall

previously have been twice

convicted, whether in this

state or elsewhere, of any

crime which under the laws of

this state would amount to a

felony, or who shall previously

have been four times convicted,

whether in this state or

elsewhere, of petit larceny,

or of any misdemeanor or gross

misdemeanor of which fraud or

intent to defraud is an element,

shall -be punished by imprison-

ment in the state penitentiary

for life.

STATEMENT OF THE CASE

William ©. Dyer was charged by

Information on March 9, 1978, of the

crimes of Possession of Stolen Property

in the Second Degree and Conspiracy to

Commit Second Degree Theft. The evidence

in the case revealed that Dyer, with the

assistance of one Terry Lynn Cook and

others, used a stolen checkbook and

forged checks for the acquisition of a

large dollar volume of construction

materials. Some of these materials were

used in Dyer's “construction business,"

and some were returned to the “sellers”

for refunds. Dyer was convicted by jury

trial in Kitsap County, Washington of.

both charges on June 16, 1978.

After the jury returned its

verdict of guilty on both’charges, on

July 5, 1978, the State filed a Supplemental

Information alleging that Dyer had

attained the status of an habitual

criminal. The state relied on two

portions of Dyer's previous criminal

history: (1) a Second Degree Burglary

conviction in Superior Court of the

State of Washington for Kitsap County

resulting from a guilty plea entered in

August, 1962, and (2) any one of three

(alleged in the alternative) prior

felony convictions for Unlawful Possession

or Delivery of a Controlled Substance in

the 203rd Judicial Court of the State of

Texas for Dallas County resulting from

guilty pleas in August, 1974.

Prior to trial on the Supple-

mental Information, counsel for Dyer

sought to exclude the use of his 1962 -

burglary conviction on the ground, inter

alia, that the record failed to establish

the “voluntariness" of his guilty plea.

The trial court rejected this and all

other claims as to this conviction, and

held it to be admissible.

Dyer was tried on the Supplemental

‘Information on September 5, 1978, before

a jury, and was found, by verdict of the

jury, on September 6, 1978 to have

attained the status of an habitual

criminal.

On direct appeal, Dyer contended

in part that it was error for the State

to be permitted to rely upon the 1962

burglary conviction for habitual criminal

purposes since the record failed to show

that at the time of plea entry he had

been fully informed of the consequences

of his plea as required by the subsequent

decision of this Court in Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969). By its decision of March

21, 1980, the Cnurt of Appeals of the

State of Washington accepted such contention,

given the recent holding on this issue

by the Supreme Court of the State of

Washington in State v. Holsworth, 93

Wn.2d 148, 607 P.2d 845 (1980), and

remanded the case for resentencing. A

motion for reconsideratior »f this

' decision was denied, as was a petition

for review by the Supreme Court of the

State of Washington.

"REASONS POR ALLOWANCE OF WRIT

I.

THE DECISION OF THE COURT

BELOW IS AN ERRONEOUS APPLICATION OF

; FEDERAL CONSTITUTIONAL PRINCIPLES.

This case presents the Court

with the much needed opportunity to

further define the scope of a criminal

defendant's right to collaterally attack

a prior felony conviction in light of

the Court's decision in Boykin v. Alabama,

supra, and to further define the rights |

of states to rely upon.such prior convic-

tions for use in proceedings for enhanced

punishment under recidivist and habitual

offender statutes. Not since the case

of Burgett v. Texas, 389 U.S. 109, 88

S.Ct. 258, 19 L.Ed.2d 319 (1967), it is

believed that the Court has squarely

confronted such an issue in this context.

Boykin v. Alabama, supra, held

that, as a matter of constitutional due

process, for a guilty plea to have been

knowningly and voluntarily entered, the

record must show that the pleading

defendant had been advised of the nature

of the offense, the sentencing alternatives

possible, and that his plea of guilty

necessarily waives his constitutional

rights to remain silent, to confront

accusers, and to a jury trial. The

issue presented by this petition is

whether a conviction arising from a

pre-Boykin plea, accepted without compli-

ance to such requirements, may be used

by the State of Washington in sentence

enhancement proceedings in 1978 under

the Washington Habitual Criminal Statute,

RCW 9.92.090. )

7 In holding that the State was

barred from use of such convictions, the

court below accepted and feIt bound by

the reasoning and decision in State v.

Holsworth, supra. Thus, it is that

decision which must be the focus analysis.

State v. Holsworth, supra,

involved seven cases consolidated on

appeal, all presenting precisely the

issue in this petition. In Holsworth,

the court described its holding as

being: .

- « « that the defendant in a

habitual criminal proceeding

can attack the use of convictions

based upon pre-Boykin guilty

pleas and that the state has

the burden of proving beyond a

reasonable doubt that the

prior conviction was based on

a valid guilty plea.

607 P.2d at 847.

The reasoning of that decision

is based primarily upon an analogy to

the decision of this Court in Burgett v.

Texas, supra, holding that a conviction

invalid under Gideon v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963), could not be used for denancenent

of punishment under a state's recidivist

statute. Specifically, the Holsworth

court wrote:

An analogy must be drawn to

Burgett v., Texas, 389 U.S.

’ L.E ° 319, 88 S.Ct.

258 (1967), the in which

United States Supreme Court

ruled that it was reversible

error to admit, for purposes

of enhanced sentencing under a

habitual criminal statute,

evidence of a prior conviction

by guilty plea entered by a

defendant unrepresented by

counsel at the time of the

- plea. The conviction whose

use was successfully challenged

in Burgett had occurred before

Gideon v. Wainright, 372 U.S.

335, 9 LeEd.ad 733, 83 S.Ct.

792 (1963), established the

right to counsel. But the

Supreme Court refused to allow

use of the prior conviction

because admission of the

evidence would have in effect

"renewed" the deprivation of

the defendant's constitutional

rights.

607 P.2d at 848.

In response to the State's petition that

the analogy was inappropriate given the

differing levels of constitutional

stature, the Holsworth court wrote:

Both Gideon and Boykin, then,

are "merely prophylactic” to

the extent they insure the

existence of procedures which

protect the defendant's consti-

tutional rights to remain

silent, to confront his accusers,

and to trial before a jury.

Extension of the Burgett

analysis to the use o pre~Boykin

pleas which were not adequately

informed is justified by the

importance of full disclosure

to valid waiver of these

constitutional rights through

the plea of guilty.

607 P.2d at 848-49.

Finally, the court in Holsworth stated:

Thus, it can be seen that

failure to disclose the

nature of the offense or

consequences of a plea may

result in a procedural defect

of constitutional magnitude if

the defendant's plea as a

consequence of that failure is

involuntary. As in Burgett,

10

violation of the defendant's

constitutional right is "renewed"

through use in a habitual

criminal proceeding of an

uninformed guilty plea which

thus violates due process.

607 P.2d at 849.

The error in the Holsworth

reasoning is in its inappropriate extension

of Burgett v. Texas to pre-Boykin plea

requirements. Gideon v. Wainwright,:

supra, involved the right to counsel, a

Sixth Amendment right of fundamental :

constitutional stature. For that reason,

the holding of Gideon v. Wainwright is

fully retroactive. Kitchens v. Smith,

401 U.S. 847, 91 S.Ct. 1089, 28

L.Ed.2d 519 (1971). Thus, pre-Gideon

convictions are themselves constitutionally

infirm and subject to collateral attack.

As stated in Burgett, to allow the State

to rely on such constitutionally invalid

convictions would cause the prior constitu-

tional violation to be "renewed."

1l

By contrast, Boykin v. Alabama,

supra, established constitutionally

prescribed procedural rules which seek

to insure and protect the underlying

fundamental right involved: a knowing,

intelligent, and voluntary plea of

guilty. In that sense, the rule announced

in Boykin is prophylactic in nature :

rather than itself being of fundamental

constitutional stature. For this

reanon, the prevailing view, in the .

absense of any specific holding by this

court, is that the rule announced in

Boykin v. Alabama is not applied retroac-

tively. See, e.g., Moss v. Craven, 427

F.2d 139 (9th Cir. 1970); Wood v. Morris,

87 Wn.2d 501, 554 P.2d 1032 (1976).2

+ The same result was reached with

respect to Rule ll, Federal Rules of

Criminal Procedure, when the Court held

that the plea entry procedures of Rule. -

ll as described in McCarthy v. United

States, 394 U.S. 459, 89 Sect. 1166, 22

L.Ed.od 418 (1969), should not be

applied retroactively. Halliday v. United

States, 394 U.S. 831, 89 S.Ct. tT58 23

L.Ed.od 16 (1969).

12

The impropriety of the Burgett/

Boykin analogy is clear. No constitutional

violation for reason of non-compliance

with Boykin v. Alabama, supra, can exist

as to any pre-Boykin plea. Rather

obviously, subsequent habitual criminal

proceedings cannot result in "renewed"

constitutional violations as to such

pleas because that which never existed

cannot be "renewed." To say that the

same plea would be entered differently

entes presently applicable constitutional

standards does not imply that there

exist any constitutional infirmaties in

the conviction as it presently stands.

The reasoning of the Washington

Court is inconsistent with the recent

decision of: thie Court in Lewis v. United

States, U.S. , 100 S.Ct. 915,

L.Ed.2d (1980), decided

thirteen days after Holsworth. In

-Lewis, the defendant had been convicted

13

under 18 U.S.C. Section 1202(a)(1) which

prohibits possession of a firearm by a

person who “has been convicted by a

court of the United States or of a

State ... of a felony.” On appeal, it

was argued that the reliance upon the

prior state court felony conviction as

an essential element of the subsequent

criminal offense was improper since that

conviction was obtained in violation of

Gideon v. Wainwright, supra. In rejecting

such claims, this Court held that Section

1202(a)(1) prohibits a convicted felon

from possessing a firearm despite the

fact that the predicate felony may be.

subject to collateral attack, and that

no constitutional violation arises as a

result of the prohibit because Congress

could rationally conclude that any

existing felony conviction, including an

allegedly invalid one, is a sufficient

‘ basis upon which to prohibit possession

14

of a firearm.

The reasoning and holding in

Lewis v. United States, supra, very

clearly shows the error in Holsworth,

and the instant case as well. ‘Lewis

involved a constitutional right of much

greater stature than the mere prophylactic

rule of Boykin and involved the allegedly

improper conviction as being an element

of a separate criminal offense rather

| than support for an enhanced punishment

status. Finally, while Holsworth,

involves an extension of Burgett into

areas involving substantially different

constitutional issues, Lewis marks the

limitation on the Burgett “renewal”

analysis even within the area of uncounseled

convictions. The error of State v.

Holsworth, supra, and the instant case

by application, could not be more clear.

The holding of State v. Holsworth,

supra, is also directly inconsistent

15

with the decision of at least two other

states. In People v. Gonzales, 38 Co.A.

522, 565 P.2d 945 (1977), the Colorado

Court of Appeals rejected the efforts of

a defendant to suppress two prior convic-

tions in subsequent habitual criminal

proceedings. One such conviction was

based upon a pre~Boykin to First Degree

Burglary. In describing the framework

for its decision, the court stated:

Whether the previous convictions

were constitutionally procured

is an issue which may properly

- be raised in an habitual

offender proceeding. See

Burgett v. Texas, 389 U.S.

109, 88 S.Ct. 258, 19 L.Ed.2d

319; Swift v. People, 174

cole. 253, 480 Pid 88 P.2d 80. Ifa

defendant's guilty plea was

not voluntary and knowing, it

was obtained in violation of

due process, and a conviction

based thereon cannot be used

for the purpose of enhancing

the punishment for another

offense. See Swift v. People,

supra. The test in s state

for voluntariness of a guilt

plea is whether there was

compliance by the sentencing

court with the requirements of

Crim.P. 11 in effect at the

16

time of the plea and of Boykin v.

Alabama, 395 U.S. 238, 895

S.Ct. 1709, 23 L.Ed.2d 274, as

to a plea received after its

. announcement date, June 2,

1969. People v. Hubbard, 184

Colo. 243, P. °

Boykin is not applied retroac-

tively. anus v. Alvarez,

181 Colo. » i ° 67.

565 P.2d at 948.

Purther, in State v. LeBlanc,

315 S.2d 654 (La. 1975), the Louisiana

Supreme Court considered a defendant's

challenge in a prosecution under the

Louisiana Habitual Offender Law to a

prior forgery conviction resulting from

a 1968 plea of guilty. In rejecting

‘this challenge, the court wrote:

In order for a prior felony

conviction to form the basis

for a multiple offender charge,

it must, inter alia, have been

obtained without the violation

of a specific federal constitu-

tional right of the accused.

Defendant argues here that the

prior conviction, which ,

resulted from a plea of guilty

to the charge of forgery, was

obtained in violation of his

federal constitutional rights,

specifically, his privilege

17

against self-incrimination

under the fifth amendment to

the United States Constitution

and his sixth amendment rights

to trial by jury and the

confrontation of his accusers,

as articulated in Boykin v.

Alabama, 395 U.S. 538, 89

S.ct. 1709, 23 L.Ed. 24 274

(1969. It is well-settled

that the rule of law announced

in Boykin decision is prospective

in operation only from the

date of the decision, June 2,

1969. As the defendant's

guilty plea to the forgery

charge was entered on March

15, 1968, prior to the rendition

of the Boykin decision, the

rule has no application here.

Accordingly, defendant's

assignment of error is without

merit.

315 So.2d at 655-56.

In summary, the court below,

bound by the precedent of State v. Holsworth,

has erroneously applied the decisions of

this Court in Boykin v. Alabama and

Burgett v. Texas, and has made such a

decision in conflict with Lewis v. United

States and the decisions of last eocort

of at least two other states. This

Court should grant the writ of certiorari

18

to review these proceedings and resolve

such conflicts.

II.

THE DECISION BELOW IS BASED

UPON FEDERAL CONSTITUTIONAL PRINCIPLES

AND IS NOT SUPPORTED BY AN INDEPENDENT

AND ADEQUATE STATE GROUND.

Were the Judgment below to be

based on an independent and adequate

state ground, this Court would lack -

jurisdiction. Film Fox Corporation v. Muller,

296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158

(1935). However, the decision below is

a direct result of the decision in

State v. Holsworth, supra, and that

decision is based upon that court's view

of federal constitutional mandates.

As is clear from the Court's

analysis of Boykin v. Alabama and Burgett v.

Texas, and its references to Henderson v.

Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49

L.Ed.2d 108 (1976), the issue is primarily

19

analyzed as one of federal constitutional

requirements. Some reference is made to

prior Washington cases regarding the

requirements for a knowing and voluntary

guilty plea. State v. Cimini, 53 Wash.

268, 101 P. 891 (1909); State v. Taft,

49 Wn.2d 98, 297 P.2d 1116 (1956);

Woods v. Rhay, 68 Wn.2d 601, 414 P.2d

601 (1966). However, these cases essentially

establish nothing. more than the underlying

constitutional requirement that: "A

Plea of guilty shall not be accepted

«+-& plea of guilty shall not be accepted

unless made voluntarily after proper

advice and with full understanding of

the consequences. Kercheval v. United

States, 274 0.S. 220, 47 S.Ct. 582, 71

L.Ed. 1109 (1927). None of the cited

Washington cases established requirements

similar to those imposed by Boykin v. Alabama,

and, in fact, the Washington courts have

in the past attempted to distinguish and

20

limit the effect of Boykin. Miesbaur v.

Rhay, 79 Wn.2d 505, 487 P.2d 1046 (1971);

Wood v. Morris 87 Wn.2d 501, 554 P.2d

1032 (1976).

In short, the Supreme Court of

the State of Washington has expressed

its view of Federal Constitutional

principles, and the Court below has ~

accepted that view as mandatory president.

As such, the issues presented here are

within the jurisdiction of this Court.

Deleware v. Prouse, 440 U.S. 648, 99

s.ct. 1391, _—sixL.Ed.2d ss (1979) 3

Oregon v. Haas, 420 U.S. 714, 95 S.Ct.

1215, 43 L.Ed.2d 570 (1975); California v.

Green, 399 U.S. 149, 90 S.Ct. 1930, 26

-

That portion of Woods v. ‘Rhay, supra,

set out in Holsworth at 93 nea 137,

607 P.2d 849-50, had previously been

construed by the Washington Supreme

Court not to impose constitutional

required plea entry procedures, but

merely establish a “recommended approach”

as to better “forestall later attacks"

on such pleas. Miesbauer v. Rhay,

supra, 79 Wn.2d at ’ ° at

1047.

21

L.Ed.2d 489 (1970).

While having made some mention

of State law, the Holsworth opinion and

holding clearly amount to a more restrictive

interpretation of federal constitutional

principles than has been imposed by this

Court. Lewis v. United States, supra.

This is not permissible, and it is

within the jurisdictional authority of

“this Court to correct. North Carolina Ve.

Butler, 441 U.S. 369, 99 S.Ct. 1755,

L.Ed.2d (1979); Oregon v. Haas,

supra.

At very least, this case

presents a situation shinies the state

court "felt compelled by what it understood

to be federal constitutional considerations

to construe ... its own law in the

manner it did..." JZacchini v. Scripps-

Howard Broadcasting Co., 448 U.S. 562,

568, 97 S.Ct 2849, 53 L.Ed.2d 965 (1977);

Delaware v. Prouse, supra.

22

In the instant case, the State

Constitutional provisions are afforded

similar scope as their federal counterparts®

and any constitutional holding ‘on state

* grounds depended upon elie: ovate court's

view of the reach of the Fourteenth

Amendment. ‘Thus, if the state court

misapprehended federal law, "it should

be freed to decide... these suits

according to its own local law." Southern

Railroad Co. v. Mayfield, 340 U.S. 1, 5,

71 S.Ct. 1, 95 L.Ed.2d 3 (1950); Delaware

v. Prouse, supra.

Thus, the instant case is

properly. within the jurisdication of

this Court.

‘Ss with respect to similar provision of

state and federal constitution for due

process in areas of criminal procedures,

the Washington Supreme Court has con-

sidered federal decisions “not neces-

sarily controlling, but entitled to

great weight." Young v. Konz, 91 Wn.2d

532, 588 P.2d 1360 tioTey, and cases

cited therein.

23

CONCLUSION

For the foregoing reasons, the Writ

of Certiorari should issue.

Respectfully submitted,

C. DANNY CLEM

Prosecuting Attorney

RONALD A. FRANZ

Deputy Prosecuting

Attorney

KENNETH G. BELL

Deputy Prosecuting

Attorney

24

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

THE STATE OF WASHINGTON )

Respondent, ) NO. 3732-IT

v. ) Division Two °

UNPUBLISHED

WILLIAM 0. DYER, ) OPINION

Appellant. ) Filed March 21, 1980

was sentenced to life iiiseuiibinn in 1978

following a jury determination of his

status as a habitual criminal. He

contends in part on appeal that one of

his prior felony convictions, upon which

the State relies to establish his status,

resulted from his entry of a plea of

guilty to a charge of burglary in 1962

and that he was not then fully informed

of the consequences of his plea as now

required by Boykin v. Alabama, 395 U.S.

238, 23 Le BA. 26 274, 89 8. GE. 1709

(1969). Pursuant to the recent mandate

of the Supreme Court, we remand for

APPENDIX

resentencing proceedings in which the

State shall be given the Opportunity to

prove beyond a reasonable doubt that the

prior burglary conviction was validly

obtained under the Boykin standards.

State v. Holsworth, 93 Wn.2d 148,

P.2d (1980).

Because of our resolution of this

issue, we find it unnecessary to discuss

Mr. Dyer's other assignments of error

which pertain solely to the habitual

criminal portions of his 1978 trial. In

the event that the State should sustain

its burden of proof as to the validity

of the prior burglary conviction and

Mr. Dyer is once again sentenced to a

life term of confinement, he may renew

those assignments of error on a subsequent

appeal. Obviously, they will not be moot

if Mr. Dyer is sentenced merely to the

Statutory maximum provided for the class

C felony, i.e. possession of stolen goods

in the second degree, of which he was

convicted in 1978 by verdict of the jury.

Accordingly, we address only those assign-

ments of error which pertain to the under-

lying trial in 1978.

Mr. Dyer contends he was denied

a fair trial on the possession charge

(and a gross misdemeanor charge of

conspiracy) because of prosecutorial

misconduct committed when the deputy who

tried the case announced in the presence

of the jury that he would call as his

next witness the defendant's trial counsel. .

This is a frivolous assertion. The court

immediately declared that counsel would

not be called as a witness, and defendant

sought no further remedial action. A

‘defendant must avail himself of trial

motions in order to correct trial actions

which he deems prejudicial. State v.

Beard, 74 Wn.2d 335, 444 P.2d 651 (1968).

The trial court committed no error.

Next, defendant contends the

trial court erred by permitting the

prosecution, over defense objections, to

introduce into evidence as an exhibit a

written statement of a witness which had

been given to the police and which

implicated Mr. Dyer in the crimes

Charged. The exhibit was introduced on

a re-direct examination of the witness

as a prior statement consistent with the

witness's testimony on direct examination

after that testimony had ‘been impeached

by cross-examination, leaving the impression

that the witness's direct testimony was

a recent fabrication. Under those

circumstances, rehabilitation of the

witness is permissible through use of

a prior consistent statement. State v.

Bradley, 17 Wn. App. 916, 567 P.2d 650

(1977) . The trial court committed no

error.

This cause is remanded with

direction for re-sentencing proceedings

consistent herewith.

A majority of the panel having

determined that this opinion not be

printed in the Washington Appellate Reports

but will be filed for public record

pursuant to RCW 2.06.040, it is so

ordered.

/s/ Petrie, J.

WE CONCUR:

/s/ Reed, Cc. J.

/s/ Pearson, J.