Superior Court County: Snohomish. Superior Court Cause No: 93-1-01814-7. Date filed in Superior Court: March 16, 1995. Superior Court Judge Signing: Gerald Knight.
Written by: Judge Kennedy, Concurred by: Judges Becker, Ellington
KENNEDY, A.C.J. -- Rodney Arnold appeals his conviction of two counts of fourth degree assault, entered after the court denied his motion to withdraw his guilty plea. Arnold contends that the factual basis for accepting the plea was improperly based on information outside of the record, and that the denial of his motion to withdraw the plea was error in light of one of the victims' recantation of her accusation. We affirm.
In August 1993, Wendy Henry overheard her niece M and M's cousin A, both aged eleven, talking about a "secret" they had involving A's father and M's uncle, Rodney Arnold. The aunt reported her ensuing conversation with the girls to the police, and on December 29, 1993, Arnold was charged with two counts of rape of a child in violation of RCW 9A.44.083, to which he pleaded not guilty. Eventually, the charge was reduced to two counts of fourth degree assault in violation of RCW 9A.36.041(1), to which Arnold pleaded guilty. Prior to sentencing, Arnold moved under CrR 4.2(d) to withdraw his guilty plea on the ground that there was no factual basis in the record upon which the court properly could have accepted his plea. On January 30, 1995, the court heard and denied Arnold's motion to withdraw his plea. As the court proceeded to sentencing at that hearing, Arnold for the first time introduced the affidavit of M, in which she stated that her earlier statement to police implicating Arnold had been untrue. The court continued the sentencing hearing for two weeks to allow the prosecutor to investigate the recantation.
Before the new date of the sentencing hearing, Arnold again moved to withdraw his guilty plea, this time arguing that withdrawal of the guilty plea was necessary to avoid a manifest injustice in light of M's recantation. On February 17, 1995, the court heard the testimony of M. The court adhered to its earlier ruling, and denied Arnold's second motion to withdraw his plea. Arnold was sentenced to 365 days, of which 320 days were suspended, on each count.
This timely appeal followed.
In the portion of the plea statement reserved for the defendant's statement, Arnold admitted having had bodily contact with both M and A without their consent, but did not explicitly state that he "intended" to do so. Arnold contends that the factual basis for accepting his guilty plea was insufficient because his mental state was not established in the record at the time of the plea hearing.
CrR 4.2(d) requires the judge to be satisfied that a factual basis exists for the plea being given. In order to determine that a factual basis exists for a plea, the judge need not be convinced beyond a reasonable doubt that the defendant is guilty. State v. Saas, 118 Wash. 2d 37, 43, 820 P.2d 505 (1991) (citing State v. Newton, 87 Wash. 2d 363, 370, 552 P.2d 682 (1976)). Instead, a factual basis exists if the evidence is sufficient for a jury to conclude that the defendant is guilty. Newton at 370. The court may consider any reliable source of information to determine whether sufficient evidence exists to support the plea, as long as it is made part of the record at the time of the plea. State v. Osborne, 102 Wash. 2d 87, 95, 684 P.2d 683 (1984) (citing In re Keene, 95 Wash. 2d 203, 210 n.2, 622 P.2d 360 (1980)).
Arnold claims, and the State concedes, that the certificate of probable cause was not "in the record at the time of the plea" within the meaning of Osborne, and that
it could not, therefore, provide the necessary factual basis for the plea. It is well-established that the prosecutor's factual statement contained in the certificate of probable cause may provide the factual basis for a plea of guilty, as long as the statement was before the court at the time of the plea, and was made a part ...