# Petition — Washington v. Dyer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 970

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0359%3A1. Public record. Not legal advice.