WSR 99-05-028

RULES OF COURT

STATE SUPREME COURT


[ February 4, 1999 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 8 (f) AND CrR 4.2)

)

)

ORDER

NO. 25700-A-646

The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 8(f) and CrR 4.2, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendments will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 4th day of February, 1999.
Richard P. Guy


B. Durham, J.


Alexander, J.


Smith, J.


Madsen, J.


Johnson, J.


Sanders, J.


Talmadge, J.


Ireland, J.



GR 9 COVER SHEET

Proposed Amendment

ADMISSION TO PRACTICE RULES (APR)

Rule 8(f) House Counsel


Submitted by the Board of Governors

of the Washington State Bar Association

(Emergency action requested)



(1) Background: At the request of the Board of Governors of the Washington State Bar Association, the Supreme Court adopted a new section (f) to Admission to Practice Rule (8) to create a limited license to practice for House Counsel, effective September 1, 1998. This is a "housekeeping" amendment to that rule.


(2) Purpose: The purpose of this rule amendment is to provide for a House Counsel license fee consistent with the other license fees of the Washington State Bar Association. The proposal from the Board of Governors to approve APR (8)(f) to establish the limited license to practice for House Counsel was first submitted to the Supreme Court in 1995. At that time the WSBA had a two-step active license fee. There was one fee for members admitted for less than three years, and a greater fee for those admitted three or more years. In 1996 the bylaws were amended to provide for a three-step dues structure: one fee for those admitted up to three years; a greater fee for those admitted four and five years; and a maximum amount for those admitted six or more years.

Because this fee structure varied from that established by the State Bar Act (RCW 2.48.130), the Board of Governors asked the Supreme Court to approve this revised fee structure, which was done by court order. The intent of the Board of Governors to require House Counsel to pay a fee equal to the maximum fee charged active members of the Bar is not reflected in the House Counsel rule as adopted.

Therefore, the Board of Governors requests that the Supreme Court approve this housekeeping amendment to APR 8 (f)(4) on an emergency basis without publication for comment.


(3) Washington State Bar Association Action: This proposed amendment was unanimously approved by the Board of Governors at their September 1998 meeting.


(4) Supporting Material: Attached is a copy of the proposed rule amendment.


(5) Spokesperson: Robert D. Welden, General Counsel, Washington State Bar Association, 2101 Fourth Avenue, Fourth Floor, Seattle, WA 98121-2330 (telephone 206-727-8232).


(6) Hearing: A hearing is not recommended. The Supreme Court is requested to adopt this amendment on an emergency basis pursuant to GR 9(i).


PROPOSED AMENDMENT

ADMISSION TO PRACTICE RULES (APR)

RULE 8 Special Admissions



(a) [No change].

(b) [No change].

(c) [No change].

(d) [No change].

(e) [No change].

(f) Exception for House Counsel

(Introductory paragraph) [No change].

(1) [No change].

(2) [No change].

(3) [No change].

(4) A lawyer admitted under this section shall pay to the Washington State Bar Association an annual license fee in the maximum amount required of active members admitted to practice for 3 or more years.

(5) [No change].

(6) [No change].

(7) [No change].

(g) [No change].


CrR 4.2

PLEAS



(a) Types. A defendant may plead not guilty, not guilty by reason of insanity or guilty.

(b) Multiple Offenses. Where the indictment or information charges two or more offenses in separate counts the defendant shall plead separately to each.

(c) Pleading Insanity. Written notice of an intent to rely on the insanity defense, and/or a claim of present incompetency to stand trial, must be filed at the time of arraignment or within 10 days thereafter, or at such later time as the court may for good cause permit. All procedures concerning the defense of insanity or the competence of the defendant to stand trial are governed by RCW 10.77.

(d) Voluntariness. 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.

(e) Agreements. If the defendant intends to plead guilty pursuant to an agreement with the prosecuting attorney, both the defendant and the prosecuting attorney shall, before the plea is entered, file with the court their understanding of the defendants criminal history, as defined in RCW 9.94A.030. The nature of the agreement and the reasons for the agreement shall be made a part of the record at the time the plea is entered. The validity of the agreement under RCW 9.94A.090 may be determined at the same hearing at which the plea is accepted.

(f) Withdrawal of Plea. The court shall allow a defendant to withdraw the defendants plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice. If the defendant pleads guilty pursuant to a plea agreement and the court determines under RCW 9.94A.090 that the agreement is not consistent with (1) the interests of justice or (2) the prosecuting standards set forth in RCW 9.94A.430-.460, the court shall inform the defendant that the guilty plea may be withdrawn and a plea of not guilty entered. If the motion for withdrawal is made after judgment, it shall be governed by CrR 7.8.

(g) Written Statement. A written statement of the defendant in substantially the form set forth below shall be filed on a plea of guilty:


SUPERIOR COURT OF WASHINGTON

FOR ( ) COUNTY


THE STATE OF WASHINGTON,)No.
Plaintiff,)
v.)STATEMENT OF
,)DEFENDANT ON
Defendant.)PLEA OF GUILTY

1. My true name is .

2. My age is .

3. I went through the grade.

4. I HAVE BEEN INFORMED AND FULLY UNDERSTAND THAT:

(a) I have the right to representation by a lawyer and that if I cannot afford to pay for a lawyer, one will be provided at no expense to me. My lawyer's name is

.

(b) I am charged with the crime of . The elements of this crime are .

5. I HAVE BEEN INFORMED AND FULLY UNDERSTAND THAT I HAVE THE FOLLOWING IMPORTANT RIGHTS, AND I GIVE THEM ALL UP BY PLEADING GUILTY:

(a) The right to a speedy and public trial by an impartial jury in the county where the crime is alleged to have been committed;

(b) The right to remain silent before and during trial, and the right to refuse to testify against myself;

(c) The right at trial to hear and question the witnesses who testify against me;

(d) The right at trial to have witnesses testify for me. These witnesses can be made to appear at no expense to me;

(e) I am presumed innocent until the charge is proven beyond a reasonable doubt or I enter a plea of guilty;

(f) The right to appeal a determination of guilt after a trial.

6. IN CONSIDERING THE CONSEQUENCES OF MY GUILTY PLEA, I UNDERSTAND THAT:

(a) The crime with which I am charged carries a maximum sentence of years imprisonment and a

$ fine. The standard sentence range is from

months to months confinement, based on the prosecuting attorney's understanding of my criminal history.

(b) The standard sentence range is based on the crime charged and my criminal history. Criminal history includes prior convictions, juvenile adjudications, and serious traffic offenses, whether in this state, in federal court, or elsewhere. Criminal history also includes convictions in juvenile court for felonies or serious traffic offenses that were committed when I was 15 years of age or older. Juvenile convictions, except those for class A felonies, count only if I was less than 23 years old when I committed the crime to which I am now pleading guilty.

(c) The prosecuting attorney's statement of my criminal history is attached to this agreement. Unless I have attached a different statement, I agree that the prosecuting attorney's statement is correct and complete. If I have attached my own statement, I assert that it is correct and complete. If I am convicted of any additional crimes between now and the time I am sentenced, I am obligated to tell the sentencing judge about those convictions.

(d) If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard sentence range and the prosecuting attorney's recommendation may increase. Even so, my plea of guilty to this charge is binding on me. I cannot change my mind if additional criminal history is discovered even though the standard sentencing range and the prosecuting attorney's recommendation increase, and even though a mandatory sentence of life imprisonment without the possibility of parole is required by law.

(e) In addition to sentencing me to confinement for the standard range, the judge will order me to pay $ as a victim's compensation fund assessment. If this crime resulted in injury to any person or damage to or loss of property, the judge will order me to make restitution, unless extraordinary circumstances exist which make restitution inappropriate. The judge may also order that I pay a fine, court costs, and attorney fees. Furthermore, the judge may place me on community supervision, impose restrictions on my activities, and order me to perform community service.

(f) The prosecuting attorney will make the following recommendation to the judge: .

(g) The judge does not have to follow anyone's recommendation as to sentence. The judge must impose a sentence within the standard range unless the judge finds substantial and compelling reasons not to do so. If the judge goes outside the standard range, either I or the State can appeal that sentence. If the sentence is within the standard range, no one can appeal the sentence.

(h) If I am not a citizen of the United States, a plea of guilty to an offense punishable as a crime under state law is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

(i) The crime of has a mandatory minimum sentence of at least years of total confinement. The law does not allow any reduction of this sentence. This mandatory minimum sentence is not the same as the mandatory sentence of life imprisonment without the possibility of parole described in paragraph 6 (a)(ii). (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(j) I am being sentenced for two or more violent offenses arising from separate and distinct criminal conduct and the sentences imposed on counts and will run consecutively unless the judge finds substantial and compelling reasons to do otherwise. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(k) In addition to confinement, the judge will sentence me to community placement for at least 1 year. During the period of community placement, I will be under the supervision of the Department of Corrections, and I will have restrictions placed on my activities. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(l) The judge may sentence me as a first time offender instead of giving a sentence within the standard range if I qualify under RCW 9.94A.030(20). This sentence could include as much as 90 days' confinement plus all of the conditions described in paragraph (e). Additionally, the judge could require me to undergo treatment, to devote time to a specific occupation, and to pursue a prescribed course of study or occupational training. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(m) This plea of guilty will result in revocation of my privilege to drive. If I have a driver's license, I must now surrender it to the judge. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(n) If this crime involves a sexual offense, prostitution, or a drug offense associated with hypodermic needles, I will be required to undergo testing for the human immunodeficiency (AIDS) virus. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(o) If this crime involves a sex offense or a violent offense, I will be required to provide a sample of my blood for purposes of DNA identification analysis. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

(p) Because this crime involves a sex offense or a kidnapping offense, I will be required to register with the sheriff of the county of the state of Washington where I reside. I must register immediately upon being sentenced unless I am in custody, in which case I must register within 24 hours of my release.

If I leave this state following my sentencing or release from custody but later move back to Washington, I must register within 30 days after moving to this state or within 24 hours after doing so if I am under the jurisdiction of this state's Department of Corrections.

If I change my residence within a county, I must send written notice of my change of residence to the sheriff at least 14 days before moving and must register again with the sheriff within 24 hours of moving. If I change my residence to a new county within this state, I must send written notice of my change of residence to the sheriff of my new county at least 14 days before moving, register with that sheriff within 24 hours of moving and I must give written notice of my change of address to the sheriff of the county where last registered within 10 days of moving. If I move out of Washington state, I must also send written notice within 10 days of moving to the county sheriff with whom I last registered in Washington state. (If not applicable, these three paragraphs should be stricken and initialed by the defendant and the judge.)

(q) This offense is a most serious offense as defined by RCW 9.94A.030(21), and if I have at least two prior convictions for most serious offenses, whether in this state, in federal court, or elsewhere, the crime for which I am charged carries a mandatory sentence of life imprisonment without the possibility of parole. (If not applicable, this sentence should be stricken and initialed by the defendant and the judge.)

(r) I understand that I may not possess, own, or have under my control any firearm unless my right to do so is restored by a court of record. (PURSUANT TO RCW 9.41.047(1), THE JUDGE SHALL READ THIS SECTION TO THE DEFENDANT IN OPEN COURT IF THE DEFENDANT IS PLEADING GUILTY TO A "SERIOUS OFFENSE" AS DEFINED UNDER RCW 9.41.010(12), A CRIME OF DOMESTIC VIOLENCE, OR A CRIME OF "HARASSMENT" AS DEFINED UNDER RCW 9A.46.060. THE CLERK SHALL FORWARD A COPY OF THE DEFENDANT'S DRIVER'S LICENSE, IDENTICARD, OR COMPARABLE IDENTIFICATION TO THE DEPARTMENT OF LICENSING ALONG WITH THE DATE OF CONVICTION.) (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)

7. I plead to the crime of

as charged in the information. I have received a copy of that information.

8. I make this plea freely and voluntarily.

9. No one has threatened harm of any kind to me or to any other person to cause me to make this plea.

10. No person has made promises of any kind to cause me to enter this plea except as set forth in this statement.

11. The judge has asked me to state briefly in my own words what I did that makes me guilty of this crime. This is my statement:

.

12. My lawyer has explained to me, and we have fully discussed, all of the above paragraphs. I understand them all. I have been given a copy of this "Statement of Defendant on Plea of Guilty." I have no further questions to ask the judge.

Defendant
I have read and discussed this statement with the defendant and believe that the defendant is competent and fully understands the statement.
Prosecuting AttorneyDefendant's Lawyer
The foregoing statement was signed by the defendant in open court in the presence of the defendant's lawyer and the undersigned judge. The defendant asserted that (check appropriate box):

(a) The defendant had previously read; or

(b) The defendant's lawyer had previously read to him or her; or

* (c) An interpreter had previously read to the defendant the entire statement above and that the defendant understood it in full.

I find the defendant's plea of guilty to be knowingly, intelligently and voluntarily made. Defendant understands the charges and the consequences of the plea. There is a factual basis for the plea. The defendant is guilty as charged.

Dated this day of , 19 .


Judge


*I am a certified interpreter or have been found otherwise qualified by the court to interpret in the

language which the defendant understands, and I have translated this entire document for the defendant from English into that language. The defendant has acknowledged his or her understanding of both the translation and the subject matter of this document. I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct.

Dated this day of , 19 .


Interpreter


(h) Verification by Interpreter. If a defendant is not fluent in the English language, a person the court has determined has fluency in the defendant's language shall certify that the written statement provided for in section (g) has been translated orally or in writing and that the defendant has acknowledged that he or she understands the translation.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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