       Fl L E
       IN CLERKS OFFICE
llJIAEME COURT, STATE OF WASHINGTON



                                                                  This oplnlonwas filed fOr record.
                                                                  at    ~          on .S              •3




             IN THE SUPREME COURT OF THE STATE OF WASHINGTON


In the Matter of the Personal              )
Restraint of                               )       No. 79761-7
                                           )
DAYVA CROSS,                               )       EnBanc
                                           )
                            Petitioner.    )       Filed      -SEP 2 6 2013

          CHAMBERS, J. *-Dayva Cross pleaded guilty to killing his wife and two of

her three daughters in 2001 and was sentenced to death. State v. Cross, 156 Wn.2d

580, 592, 132 P.3d 80 (2006). We affirmed his sentence on direct review. !d. When

Cross entered his plea he did so by what we commonly call an A!fori plea. In an

Alford plea, the accused technically does not acknowledge guilt but concedes there is

sufficient evidence to support a conviction. A judge may accept such a plea only if it

is made voluntarily, competently, with an understanding of the nature of the charge

and the consequences of the plea, and when the judge is satisfied that there is a factual

*Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to
Washington Constitution article IV, section 2(a).
1
  North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). We adopted the
Alford holding in State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
In re Pers. Restraint of Cross, No. 79761-7



basis for the plea. State v. A.NJ, 168 Wn.2d 91, 117, 225 P .3d 956 (20 10) (citing In

re Pers. Restraint of Mendoza Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987));

CrR 4.2(d). In his first personal restraint petition challenging the judgment and

sentence, Cross contended, among other things, that an Alford plea is insufficient to

support capital punishment and asked that we vacate his sentence and remand to the

trial court with direction that the Alford plea be set aside, essentially rolling this case

back to where it was in 2000. If Cross had prevailed on this issue, much of his

personal restraint petition would have been mooted, so this court agreed to consider

the issue separately. After oral argument we denied relief by order with opinion to

follow. This is that opinion. We hold that a capital sentence can be predicated on an

Alford plea and deny that portion of his personal restraint petition. The remaining

issues will be disposed ofby separate opinion.

                                              ANALYSIS

       The character of the claimed error as constitutional or non constitutional would

normally both structure our review and establish the petitioner's burden. At

minimum, Cross must establish error and actual and substantial prejudice. In re Pers.

Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990). The parties have

elected not to discuss this character of the error and instead focus on the claimed error

itself. Applying the minimum burden Cross must meet, we find no error and thus

need not decide its character.

                                                 2
In re Pers. Restraint of Cross, No. 79761-7



       1. Common Law No-Contest Pleas

       Essentially, Cross proposes a syllogism. At common law, a defendant could

not plead no-contest to a capital charge. An Alford plea, he argues, is essentially a no-

contest plea. Therefore, he concludes, Judge Joan DuBuque should not have accepted

't
1 .2


       Cross's first premise is correct. By the mid-fourteenth century, English courts

were accepting various types of no-contest pleas in misdemeanor cases. Neil H.

Cogan, Entering Judgment on a Plea ofNolo Contendere: A Reexamination ofNorth

Carolina v. Alford and Some Thoughts on the Relationship Between Proof and

Punishment, 17 ARIZ. L. REV. 992, 1003, 1007 (1975). For example, by 1431,

defendants could enter a plea of"'ponit se in gratiam domini Regis'- he puts himself

in the grace of the lord King," without specifically admitting guilt. !d. at 1005. But if

charged with a felony, the defendant had the choice of confession, what we now call a

guilty plea, or denial, what we now call a not guilty plea. !d. at 999, 1002. If the

defendant denied the charge, he had to consent to some sort of trial. !d. If the

defendant declined to plea, he could be tortured or imprisoned until he did. !d. at

1002-03 & n.86. There was apparently no mechanism for a trial judge to enter a plea

on the defendant's behalf.
2
 The only court to consider whether an Alford plea could be accepted to a capital charge
squarely dismissed the argument in three summary paragraphs, albeit with no discussion of the
common law. State v. Ray, 310 S.C. 431, 435, 427 S.E.2d 171 (1993).


                                               3
In re Pers. Restraint of Cross, No. 79761-7



       "Because the plea of ponit se in gratiam presented proof of guilt with reduced

certainty, the punishment meted out to the accused appears to have been

correspondingly reduced." I d. at 1011 (citing WILLIAM LAMBARD, EIRENARCHA 512

(1599)). Ponit se in gratiam could not be pleaded to felonies (which at the time

almost always carried a potential death sentence) because "an implied admission was

proof of insufficient certainty upon which to put a person to death." Cogan, supra, at

1013; see also Nathan B. Lenvin & Ernest S. Meyers, Nolo Contendere: Its Nature

and Implications, 51 YALE L. J. 1255, 1262-63 (1942).

       Defendants were pleading nolo contendere in England by 1716 and New York

by 1721. Cogan, supra, at 1014, 1015 (citing THOMAS FARRESLEY, MODERN CASES

(1716); JULIUS GOEBEL, JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN

COLONIAL NEW YORK 592-93 & n.180 (1944)). Over the years, nolo contendere and

non vult contendere pleas were allowed for noncapital felonies, but less than a century

ago the Pennsylvania Supreme Court observed, "[N]either in England nor in this

country has the plea ever been allowable in capital cases." Commonwealth v. Shrope,

264 Pa. 246, 250, 107 A. 729 (1919); see also Cogan, supra, at 999. Instead, in

capital cases, "guilt must be established by evidence which excludes all reasonable

doubt. An implied confession of guilt cannot rise to the degree of certainty which

would make it the equivalent of an express confession." Shrope, 264 Pa. at 250; see

also Hudson v. United States, 272 U.S. 451, 451-52, 47 S. Ct. 127, 71 L. Ed 347

                                              4
In re Pers. Restraint of Cross, No. 79761-7



(1926); 3 State ex rel. Clark v. Adams, 144 W.Va. 771, 779, 111 S.E.2d 336 (1959)

("The courts, however, are unanimous in holding that in the absence of a statute to the

contrary the plea of nolo contendere can not be accepted to an indictment for an

offense for which capital punishment is prescribed."). Despite the history of refusing

to accept the plea in felonies, in 1926, the United States Supreme Court approved the

use of a nolo contendere plea in crimes that carried a prison sentence. Hudson, 272

U.S. at 452, 457.

         There is nothing mystical about common law courts' reluctance to accept these

various types of no-contest pleas in capital cases. While a confession was accepted as

sufficient evidence of guilt at common law, once various types of duels and ordeals

were set aside, there was no other way to test whether there was sufficient evidence of

guilt except by trial. Cogan, supra, at 1000, 1003. Trial, it seems, could be held only

if the defendant consented. !d. at 999 & nn.68-69. If the defendant did not consent to




3
    As the Supreme Court noted in Hudson,

       "An implied confession is where a defendant, in a case not capital, doth not
       directly own himself guilty, but in a manner admits it by yielding to the king's
       mercy, and desiring to submit to a small fine: in which case, if the court think fit
       to accept of such submission, and make an entry that the defendant posuit se in
       gratiam regis, without putting him to a direct confession, or plea (which in such
       cases seems to be left to discretion), the defendant shall not be estopped to plead
       not guilty to an action for the same fact, as he shall be where the entry is quod
       cognovit indictamentum."
Hudson, 272 U.S. at 453 (emphasis added) (quoting 2 WILLIAM HAWKINS, PLEAS OF THE CROWN
466 (8th ed. 1824)).

                                              5
In re Pers. Restraint of Cross, No. 79761-7



some method of proof, the judge could be put in the position of sentencing a man to

death with only the accusation as evidence of guilt. As Professor Cogan noted:

       [A]n accused's refusal to confess or deny/consent, even if characterized as an
       implied admission, provided no such sufficient proof, evil fame of the accused
       notwithstanding. An accused might have refused to confess or deny/consent
       for many reasons, including among others, avoidance of forfeiture of lands and
       tenements, and distrust of the mode of proof. Thus, while it might have been
       reasonable to imply guilt from an accused's refusal to expressly admit or deny,
       such an implied admission appears not to have been clothed with enough
       certainty to constitute sufficient proof for a felony. Misdemeanors, on the other
       hand, were treated somewhat differently.

Cogan, supra, at 1003 (footnote omitted).

       2. Alford Pleas

       However, the next leg of Cross's syllogism, that the Alford plea4 is essentially

the same as the common law no-contest plea, fails. Unlike the common law no-

contest pleas that could be entered without any factual support or independent

determination of the existence of sufficient evidence to support a finding of guilt, an

Alford plea in Washington State courts can be accepted only if the trial judge finds




4Henry Alford had been charged with first degree murder inN orth Carolina. After his attorney
interviewed his proposed alibi witnesses and found they were unwilling to corroborate his
absence from the crime scene, he agreed to plead guilty while maintaining his innocence. He
later sought habeas relief in the federal courts on the theory that the due process clause of the
Fourteenth Amendment did not allow a court to accept a guilty plea from defendants who
maintained their innocence. The court disagreed. "In view of the strong factual basis for the
plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his
professed belief in his innocence, we hold that the trial judge did not commit constitutional error
in accepting it." North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970).

                                                 6
In re Pers. Restraint of Cross, No. 79761-7



that it is knowingly, voluntarily, and intelligently made, and that there is a satisfactory

evidentiary basis to accept the plea:

       The court shall not accept a plea of guilty, without first determining that it is
       made voluntarily, competently and with an understanding of the nature of the
       charge and the consequences of the plea. The court shall not enter a judgment
       upon a plea of guilty unless it is satisfied that there is a factual basis for the
       plea.

CrR 4.2( d). That evidence can come from any reliable source and must be sufficient

for a jury to conclude the defendant is guilty. State v. Newton, 87 Wn.2d 363, 369-70,

552 P.2d 682 (1976).

       Thus, looking beyond the mere title of the pleas, the practical reason for

refusing to accept a no-contest plea at common law-that there was no mechanism to

decide if there was an evidentiary basis for the plea-does not exist for an Alford plea.

A trial judge may not accept an Alford plea without an evidentiary basis and without

concluding that the plea is knowing, voluntary, and intelligent. CrR 4.2( d). We

conclude that the historical common law bar to no-contest pleas in capital cases does

not apply to Alford pleas.

       Alternatively, Cross argues that the trial judge was implicitly forbidden from

accepting his Alford plea by statute. As he notes, the Washington Legislature has, in

broad terms, incorporated the common law:

        The provisions of the common law relating to the commission of crime and the
        punishment thereof, insofar as not inconsistent with the Constitution and
        statutes of this state, shall supplement all penal statutes of this state and all

                                              7
In re Pers. Restraint of Cross, No. 79761-7



         persons offending against the same shall be tried in the courts of this state
         having jurisdiction of the offense.

RCW 9A.04.060. But his alternative argument fails for the same reason the

substantive argument fails-because it presumes that an Alford plea is substantially

similar to a common law no-contest plea, and thus the common law prohibition would

apply.

         Cross also stresses that no-contest pleas have never been explicitly authorized

by our legislature or by court rule. See CrR 4.2(a) ("A defendant may plead not

guilty, not guilty by reason of insanity, or guilty."); CODE OF 1881, § 1054 ("There

are but three pleas to the indictment. A plea of: 1. Guilty. 2. Not guilty. 3. A former

judgment of conviction or acquittal .... "). Therefore, he reasons, "this Court can

only conclude that the Legislature has declined to authorize the acceptance of an

Alford plea in a capital case." Suppl. Br. ofPet'r at 10. But while the legislature has

not explicitly approved of Alford pleas, this court has. Newton, 87 Wn.2d at 372.

While Newton suggests that a trial court should be careful in accepting an Alford plea

when the defendant actually asserts innocence, the question is whether the plea is "'a

voluntary and intelligent choice among the alternative courses of action open to the

defendant"' and whether there is a factual basis for the plea. !d. at 372-73 (quoting

Alford, 400 U.S. at 31 ). Cross cites no authority for the implicit proposition that the

court rules or superseded statutes trump this court's opinions.



                                               8
In re Pers. Restraint of Cross, No. 79761-7



       RCW 10.01.060 5 prevents bench trials in capital cases. Cross argues from that

that the legislature meant to prevent Alford pleas from being accepted in capital cases.

This is an interesting argument. However, nothing in chapter 10.95 RCW, the capital

punishment act, prevents a defendant from pleading guilty, and nothing in Newton

limits it to noncapital crimes. An Alford plea is a type of guilty plea. Certainly, a trial

judge can refuse to accept the plea. Judge DuBuque considered briefing and held

several hearings on the subject before she did accept it. Clerk's Papers (CP) at 1638-

47, 1171-77; Verbatim Report of Proceedings (VRP) (Oct. 19, 2000) at 7-39

(discussions of the appropriate evidentiary basis); VRP (Oct. 23, 2000) at 5-65 (more

discussion of appropriate evidence), 65-193 (plea colloquy).

       Cross does not make a compelling case that the legislature disapproves of

Alford pleas. There is nothing direct in the Washington code that shows disapproval.

Nor has the legislature taken any steps to amend chapter 10.95 RCW in the wake of

Newton or after our opinion affirming Cross's death sentence in 2006, despite the fact




        5
         No person informed against or indicted for a crime shall be convicted thereof,
        unless by admitting the truth of the charge in his or her plea, by confession in
        open court, or by the verdict of a jury, accepted and recorded by the court:
        PROVIDED HOWEVER, That except in capital cases, where the person
        informed against or indicted 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.

RCW 10.01.060.

                                                 9
In re Pers. Restraint of Cross, No. 79761-7



the opinion says on its second page that Cross entered an Alford plea. Cross, 156

Wn.2d at 593.

       There are advantages to an Alford plea. It permits a defendant to plead guilty

without bearing the burden of some collateral effects that accompany an admission of

guilt. For example, a defendant who enters either an Alford plea or a nolo contendere

plea is not estopped from denying guilt in a subsequent civil case. Clark v. Baines,

150 Wn.2d 905, 917, 84 P.3d 245 (2004); Cogan, supra, at 1007 (citing, e.g., Y.B. 9

Hen. 6, f. 60, pl. 8 (1431) (Eng.)). Cross argues that this supports the principle that an

Alford plea should not be accepted in a capital case since "this advantage would cease

to be of any significance. Avoiding the preclusive effect of collateral estoppel is of

little use if one is dead." Suppl. Br. ofPet'r at 14. However, a defendant in a capital

case does glean at least one advantage from an Alford plea: it limits the amount of

evidence the State may seek to introduce.

       3. Whether the Plea was Knowing and Voluntary

        Cross makes a point which is well taken and could be persuasive if this were

not a postjudgment collateral attack and if Cross seriously asserted his innocence to

crimes of which he was convicted. Conviction requires proof of guilt beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 361, 90S. Ct. 1068, 25 L. Ed. 2d 368

(1970). CrR 4.2( d) only requires the judge find a satisfactory factual basis for the

plea. For example, there may be satisfactory evidence that a defendant committed the

                                              10
In re Pers. Restraint of Cross, No. 79761-7



charged act, such as a sex act or a killing, but little evidence that requisite states of

mind were present. Cf A.NJ., 168 Wn.2d at 118. But this is true of every guilty plea.

The defendant could almost always later claim that the evidence presented did not

establish "beyond a reasonable doubt" every element of the crime, particularly when

the crime includes an intent element. However, unlike common law no-contest pleas,

Alford pleas may only be accepted upon an adequate factual showing, among other

things.

          Under our rules and case law, a Washington court will not accept a plea (let

alone permit a defendant to be put to death upon that plea) unless the court first

determines that the defendant is competent and fully understands the nature of and

consequences of each and every charge to which the defendant pleads. See id. at 113-

17. The plea must be voluntary and the trial judge must be fully satisfied there is a

factual basis to support each charge. A record of that factual basis is preserved for

rev1ew.

          Cross does not seriously assert that his plea was not knowingly and voluntarily

given and has not moved to withdraw his plea. A plea may be withdrawn if it is not

given knowingly, intelligently, and voluntarily. Id. at 119 (citing In re Pers. Restraint

of Isadore, 151 Wn.2d 294,298, 88 P.3d 390 (2004)). We are aided in our review by

Cross's statement on plea of guilty and the extensive colloquy between Judge

DuBuque and Cross when he entered his plea. Cross entered his plea during voir dire.

                                              11
In re Pers. Restraint of Cross, No. 79761-7



By pleading guilty Cross bypassed the guilt phase of his trial and went directly to the

penalty phase. The penalty phase was to determine whether or not the death penalty

would be imposed. In his statement on plea of guilty, Cross admitted that he killed

the three women but specifically stated that he did not believe that he committed the

crimes in premeditated fashion or as part of a common scheme or plan. CP at 1656.

Premeditation is an element of aggravated murder and common scheme or plan is an

aggravator that subjects the defendant to the death penalty. Cross's plea was a

calculated decision. Cross acknowledged that "there is a substantial likelihood that a

jury would find premeditation beyond a reasonable doubt" and that he would be

convicted. CP at 1205. The record strongly suggests Cross felt he had a better chance

of persuading the jury in the penalty phase that he lacked a plan or premeditation if

the jury did not hear the evidence in the guilt phase of the trial.

       When taking his plea, Judge DuBuque and the State painstakingly walked

Cross through the elements of the crimes of which he was charged, his potential

defenses, the rights he was relinquishing, and the punishment he faced. VRP (Oct. 23,

2000) at 64-160. On the issues of premeditation and common scheme or plan, the

judge had Cross state in his own words his understanding of the meaning of those

concepts. Id. at 122-26. There is sufficient evidence upon this record for a jury to

find guilt beyond a reasonable doubt. There is no doubt from the trial transcript that




                                              12
In re Pers. Restraint of Cross, No. 79761-7



there was substantial evidence from which the jury could find beyond a reasonable

doubt that Cross acted with both premeditation and a common scheme or plan.

       Entering an Alford plea was a legitimate tactical move. Because he pleaded

guilty, it is highly likely the jury did not hear some of the gruesome details of the

murders. By entering an Alford plea, he was not barred from arguing in the penalty

phase that he lacked premeditation or a common scheme or plan. The tactic did not

work. He cannot now say that he was unaware that the Alford plea could lead to a

sentence of death. 6

                                       CONCLUSION

       At common law, there existed a procedure for defendants to enter no-contest

pleas and place themselves within the grace of the King. Because the plea was not

supported with any evidence to support a finding of guilt, such pleas we considered

insufficient to support a capital penalty. However, the Washington State statutes and

rules that provide for accepting an Alford plea are much different than those of ancient

no-contest pleas and, if followed, do provide an adequate basis to support capital

punishment. Current Washington law does not permit the acceptance of a guilty plea,

including an Alford plea, "without first determining that it is made voluntarily,

competently and with an understanding of the nature of the charge and the



6
  Because we uphold the plea, we find it unnecessary to reach the State's argument that any
defect in the plea was invited error.

                                               13
In re Pers. Restraint ofCross, No. 79761-7



consequences of the plea. The court shall not enter a judgment upon a plea of guilty

unless it is satisfied that there is a factual basis for the plea." CrR 4.2(d). A careful

review of the record reveals that Cross's Alford plea was a calculated one. It likely

avoided having all the gruesome details of the murders presented to the jurors at the

guilt phase and preserved his ability to argue at the penalty phase of the trial that he

killed the three women without premeditation or a common scheme or plan.

Unfortunately for Cross his tactic did not work. The record reflects that his plea was

knowing, voluntary, and intelligent. Cross has failed to show error. His petition on

this issue is denied.




                                             14
In re Pers. Restraint of Cross, No. 79761-7




WE CONCUR:




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