In the Matter of the Personal Restraint of Dayva Cross, Petitioner
Argued June 25, 2009
Petition for certiorari filed at, 12/17/2014
James E. Lobsenz (of Carney Badley Spellman ), and Todd Maybrown (of Allen Hansen & Maybrown PS ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Donald J. Raz, James M. Whisman, and Randi J. Austell, Deputies, for respondent.
David B. Zuckerman and Rita J. Griffith on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
AUTHOR: Tom Chambers, Justice Pro Tem. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Gerry L. Alexander, Justice Pro Tem., Richard B. Sanders, Justice Pro Tem.
[178 Wn.2d 521] ¶ 1 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. Id. When Cross entered his plea he did so by what we commonly call an Alford  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 basis for the plea. [178 Wn.2d 522] State v. A.N.J., 168 Wn.2d 91, 117, 225 P.3d 956 (2010) (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 of by separate opinion.
¶ 2 The character of the claimed error as constitutional or nonconstitutional 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.
1. Common Law No-Contest Pleas
¶ 3 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 [178 Wn.2d 523] plea. Therefore, he concludes, ...