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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter ofthe Personal Restraint of DA 

### YVA CROSS, Petitioner. ) ) ) ) ) ) No. 79761-7 EnBanc Filed 

### -SEP 26 

### 2013 CHAMBERS, J.*-DayvaCross 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 pleahe did so by what we commonly call an A

### !fori plea. In an 

### Alfordplea, the accused technically does not acknowledge guilt but concedes there is sufficient evidence to support a conviction. Ajudge may accept such a plea only ifit is made voluntarily, competently, with an understanding ofthe nature ofthe charge and the consequences ofthe plea, and when thejudge is satisfied that there is a factual *Justice Tom Chambers is serving as ajustice pro tempore ofthe Supreme Courtpursuant to Washington Constitution article IV, section 2(a). 1North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). We adopted the Alford holding inState 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 1 0) (citingIn
re Pers. Restraint of Mendoza Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987)); CrR 4.2(d). Inhis first personal restraint petition challenging thejudgment and sentence, Cross contended, among other things, that anAlfordplea is insufficient to support capital punishment and asked that we vacate his sentence and remand to the trial court with direction that theAlfordpleabe set aside, essentially rolling this case back to where it was in 2000. IfCross had prevailed on this issue, much ofhis personal restraintpetition would have been mooted, so this court agreed to consider the issue separately. After oral argument we denied reliefby order with opinion to follow. This is that opinion. We hold that a capital sentence can be predicated on an Alfordplea and deny that portion ofhis personal restraint petition. The remaining issues will be disposed ofby separate opinion. ANALYSIS The character ofthe 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 notto discuss this character ofthe error and instead focus onthe claimed error itself. Applying the minimum burden Cross must meet, we find no error and thus neednot decide its character.
2In re Pers. Restraint of Cross, No. 79761-7
1. Common LawNo-Contest Pleas Essentially, Cross proposes a syllogism. At common law, a defendant could notplead no-contest to a capital charge. AnAlfordplea, he argues, is essentially a nocontest plea. Therefore, he concludes, Judge Joan DuBuque should not have accepted 't 2 1 . Cross's first premise is correct. Bythe mid-fourteenth century, English courts
were accepting various types ofno-contestpleas inmisdemeanor cases. Neil H. Cogan, EnteringJudgment on a Plea of Nolo Contendere: A Reexamination ofNorth Carolina v. Alford andSome Thoughts on the RelationshipBetween 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 ofthe lord King," without specifically admitting guilt. 

### !d. at 1005. But if charged with a felony, the defendant had the choice ofconfession, what we now call a guilty plea, or denial, what we now call a not guilty plea. 

### !d. at 999, 1002. Ifthe defendant denied the charge, he had to consent to some sort oftrial. 

### !d. Ifthe 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 trialjudgeto enter a plea
onthe defendant's behalf.
2 The only court to consider whether anAlfordplea could be accepted to a capital charge squarely dismissed the argument inthree summary paragraphs, albeit with no discussion ofthe common law. State v. Ray, 310 S.C. 431, 435, 427 S.E.2d 171 (1993).
3In re Pers. Restraint of Cross, No. 79761-7
"Becausethe plea of ponitse in gratiam presentedproofofguilt with reduced certainty, the punishment meted outto the accused appears to have been correspondingly reduced." I

### d. at 1011 (citing WILLIAM LAMBARD, EIRENARCHA 512 (1599)). Ponit se in gratiam could notbe pleaded to felonies (which at the time almost always carried a potential death sentence) because "an implied admission was proofofinsufficient certainty upon whichto put a personto death." Cogan, supra, at 1013; see also NathanB. Lenvin & Ernest S. Meyers, Nolo Contendere: Its Nature andImplications, 51 YALE L. J. 1255, 1262-63 (1942). Defendants were pleading nolo contendere in England by 1716 andNew York by 1721. Cogan, supra, at 1014, 1015 (citing THOMAS FARRESLEY, MODERN CASES (1716); JULIUS GOEBEL, JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIALNEW 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 inthis country has the plea everbeen 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 ofguilt cannot rise to the degree ofcertainty which would make itthe equivalent ofan express confession." Shrope, 264 Pa. at 250; see also Hudson v. UnitedStates, 272 U.S. 451, 451-52, 47 S. Ct. 127, 71 L. Ed 347 4In 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 ofa statute to the contrary the plea ofnolo contendere can not be accepted to an indictment for an offense for which capital punishment is prescribed."). Despite the history ofrefusing to acceptthe plea in felonies, in 1926, the United States Supreme Court approved the
use ofa 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 acceptthese various types ofno-contest pleas in capital cases. While a confession was accepted as sufficient evidence ofguilt at common law, once various types ofduels and ordeals
were set aside, there was no other way to test whether there was sufficient evidence of guilt except bytrial. Cogan, supra, at 1000, 1003. Trial, it seems, could beheld only ifthe defendant consented. 

### !d. at 999 & nn.68-69. Ifthe 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 ownhimselfguilty, but in a manner admits it by yielding to the king's mercy, and desiring to submitto a small fine: inwhich case, ifthe courtthink fit to accept ofsuch submission, and make an entry that the defendant posuit se in gratiam regis, withoutputting 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)). 5In re Pers. Restraint of Cross, No. 79761-7

some method ofproof, thejudge could be put in the position ofsentencing a man to death with only the accusation as evidence ofguilt. As Professor Cogan noted: [A]n accused's refusal to confess or deny/consent, even ifcharacterized as an implied admission, provided no such sufficient proof, evil fame ofthe accused notwithstanding. An accused might have refused to confess or deny/consent for many reasons, including among others, avoidance offorfeiture oflands and tenements, and distrust ofthe mode ofproof. 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 prooffor a felony. Misdemeanors, onthe other hand, were treated somewhat differently. Cogan, supra, at 1003 (footnote omitted). 2. AlfordPleas However, the next leg ofCross's syllogism, thattheAlfordplea4 is essentially the same as the common law no-contest plea, fails. Unlike the common law nocontest pleas that could be entered without any factual support or independent determination ofthe existence ofsufficient evidence to support a finding ofguilt, an Alfordplea in Washington State courts canbe accepted only ifthe trialjudge finds

4Henry Alford had been charged with first degree murder inNorth 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 reliefin the federal courts on the theory that the due process clause ofthe Fourteenth Amendment did not allow a court to accept a guilty plea from defendants who maintained their innocence. The court disagreed. "Inview ofthe strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed beliefin his innocence, we hold that the trialjudge 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). 6In 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 ofguilty, without first determining that it is made voluntarily, competently and with an understanding ofthe nature ofthe charge and the consequences ofthe plea. The court shall not enter ajudgment upon a plea ofguilty 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 ajuryto 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 ofthe pleas, the practical reason for refusing to accept a no-contest plea at common law-thatthere was no mechanism to decide ifthere was an evidentiary basis for the plea-does not exist for anAlfordplea. A trialjudge may not accept anAlfordpleawithout 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 Alfordpleas. Alternatively, Cross argues that the trialjudgewas implicitly forbidden from accepting hisAlfordpleaby statute. As he notes, the WashingtonLegislature has, in broad terms, incorporated the common law: The provisions ofthe common law relating to the commission ofcrime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes ofthis state, shall supplement all penal statutes ofthis state and all
7In re Pers. Restraint of Cross, No. 79761-7

persons offending against the same shall be tried inthe courts ofthis state havingjurisdiction ofthe offense. RCW 9A.04.060. Buthis alternative argument fails for the same reason the substantive argument fails-because it presumes that anAlfordplea is substantially similar to a common law no-contestplea, and thus the common law prohibitionwould apply. Cross also stresses that no-contest pleas have neverbeen explicitly authorized by our legislature orby court rule. See CrR4.2(a) ("A defendant mayplead not guilty, not guilty byreason ofinsanity, 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 ofconviction or acquittal
...."). Therefore, hereasons, "this Court can only conclude that the Legislature has declinedto authorize the acceptance ofan Alfordplea in a capital case." Suppl. Br. ofPet'r at 10. But while the legislature has not explicitly approved of Alfordpleas, this courthas. Newton, 87 Wn.2d at 372. WhileNewton suggests that a trial court should be careful in accepting anAlfordplea when the defendant actually asserts innocence, the question is whether the pleais "'a voluntary and intelligent choice among the alternative courses ofaction 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.

8In re Pers. Restraint of Cross, No. 79761-7
RCW 10.01.0605prevents bench trials in capital cases. Cross argues from that that the legislature meant to preventAlfordpleas 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 inNewton limits it to noncapital crimes. AnAlfordplea is a type ofguilty plea. Certainly, a trial judge can refuse to accept the plea. Judge DuBuque considered briefing and held several hearings on the subjectbefore she did accept it. Clerk's Papers (CP) at 1638- 47, 1171-77; Verbatim Report ofProceedings (VRP) (Oct. 19, 2000) at 7-39 (discussions ofthe appropriate evidentiary basis); VRP (Oct. 23, 2000) at 5-65 (more discussion ofappropriate evidence), 65-193 (plea colloquy). Cross does not make a compelling case that the legislature disapproves of Alfordpleas. 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

5No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth ofthe charge in his or her plea, by confession in open court, or by the verdict ofajury, accepted and recorded bythe court: PROVIDED HOWEVER, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, suchperson may, withthe assent ofthe court, waive trial byjury and submit to trial by the court. RCW 10.01.060. 9In re Pers. Restraint of Cross, No. 79761-7
the opinion says on its second page that Cross entered anAlfordplea. Cross, 156 Wn.2d at 593. There are advantages to anAlfordplea. Itpermits a defendant to plead guilty without bearing the burden ofsome collateral effects that accompany an admission of guilt. For example, a defendant who enters either anAlfordplea or a nolo contendere pleais not estopped from denying guilt in a subsequent civil case. Clarkv. 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 Alfordplea should notbe accepted in a capital case since "this advantage would cease to be ofany significance. Avoiding the preclusive effect ofcollateral estoppel is of little use ifone is dead." Suppl. Br. ofPet'r at 14. However, a defendant in a capital
case does glean at least one advantage from anAlfordplea: it limits the amount of evidence the State may seek to introduce. 3. Whether the Plea wasKnowing and Voluntary Cross makes apoint which is well taken and could be persuasive ifthis were not apostjudgment collateral attack and ifCross seriously asserted his innocence to crimes ofwhich he was convicted. Conviction requires proofofguiltbeyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90S. Ct. 1068, 25 L. Ed. 2d 368 (1970). CrR4.2(d) only requires thejudge find a satisfactory factual basis for the plea. For example, there maybe satisfactory evidence that a defendant committed the
10In 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. CfA.NJ., 168 Wn.2d at 118. Butthis is true ofevery guilty plea. The defendant could almost always later claim thatthe evidence presented did not establish "beyond a reasonable doubt" every element ofthe crime, particularly when the crime includes an intent element. However, unlike common law no-contest pleas, Alfordpleas 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 uponthat plea) unless the court first determines that the defendant is competent and fully understands the nature ofand consequences ofeach and every charge to which the defendant pleads. See id. at 113- 17. The pleamust be voluntary and the trialjudge must be fully satisfied there is a factual basis to support each charge. A record ofthat factual basis is preserved for rev1ew. Cross does not seriously assert that his pleawas not knowingly and voluntarily given and has not moved to withdraw his plea. A pleamay be withdrawn ifit is not given knowingly, intelligently, and voluntarily. Id. at 119 (citingIn 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 onplea ofguilty and the extensive colloquy between Judge DuBuque and Cross when he entered his plea. Cross entered his plea during voir dire.
11In re Pers. Restraint of Cross, No. 79761-7 Bypleading guilty Cross bypassed the guilt phase ofhis trial and went directly to the penalty phase. The penalty phase was to determine whether or not the deathpenalty would be imposed. In his statement on plea ofguilty, Cross admitted thathe killed the three women but specifically stated that he did not believe that he committed the crimes inpremeditated fashion or as part ofa common scheme or plan. CP at 1656. Premeditation is an element ofaggravated murder and common scheme or plan is an aggravator that subjects the defendant to the deathpenalty. 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 ofpersuading thejury in the penalty phase that he lacked a plan or premeditation if thejury did not hear the evidence in the guilt phase ofthe trial. When taking his plea, Judge DuBuque and the State painstakingly walked Cross through the elements ofthe crimes ofwhich he was charged, his potential defenses, the rights he was relinquishing, and the punishmenthe faced. VRP (Oct. 23, 2000) at 64-160. Onthe issues ofpremeditation and common scheme or plan, the judge had Cross state in his own words his understanding ofthe meaning ofthose concepts. Id. at 122-26. There is sufficient evidence upon this record for ajuryto find guilt beyond a reasonable doubt. There is no doubt from the trial transcriptthat

12In re Pers. Restraint of Cross, No. 79761-7
there was substantial evidence from which thejury could find beyond a reasonable doubt that Cross acted with bothpremeditation and a common scheme or plan. Entering anAlfordplea was a legitimate tactical move. Because he pleaded guilty, it is highly likely thejury did not hear some ofthe gruesome details ofthe murders. By entering anAlfordplea, he was notbarred 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 theAlfordplea could lead to a sentence ofdeath.6 CONCLUSION At common law, there existed a procedure for defendants to enter no-contest pleas and place themselves within the grace ofthe King. Because the plea was not supported with any evidence to support a finding ofguilt, such pleas we considered insufficient to support a capital penalty. However, the Washington State statutes and rules that provide for accepting anAlfordplea are much different than those ofancient no-contest pleas and, iffollowed, do provide an adequate basis to support capital punishment. Current Washington law does notpermit the acceptance ofa guilty plea, including anAlfordplea, "without first determining that it is made voluntarily, competently and with an understanding ofthe nature ofthe charge and the

6 Because we uphold the plea, we find itunnecessary to reachthe State's argument that any defect in the pleawas invited error. 13In re Pers. Restraint ofCross, No. 79761-7
consequences ofthe plea. The court shall not enter ajudgmentupon a plea ofguilty unless 

### itis satisfied that there is a factual basis for the plea." CrR4.2(d). A careful review ofthe record reveals that Cross'sAlfordpleawas a calculated one. Itlikely avoided having all the gruesome details ofthe murders presented to thejurors atthe guilt phase and preserved his ability to argue at the penalty phase ofthe 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.

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



### WE CONCUR:

15

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