Piety Ann Clark, Respondent, v. Wayne A. Baines, et al., Petitioners, 114 Wash. App. 19

Quinn-Brintnall, A.C.J. Wayne A. Baines appeals the trial court’s dismissal of his malicious prosecution counterclaims against Piety Ann Clark. Following Baines’ entry of an Alford plea to two counts of fourth degree assault with sexual motivation, Clark sued Baines seeking damages for sexual battery and outrage. Because Baines’ unchallenged judgment and sentence conclusively establishes probable cause for Clark’s lawsuit and precludes Baines’ claim of malicious prosecution against the victim of the offense to which he pleaded guilty, we affirm. FACTS Piety Ann Clark accused her state-provided caregiver, Wayne A.

Baines, of rape. Baines admitted having sexual relations with Clark, but he claimed that they were consensual. He also claimed that Clark made the rape accusations after he broke off their affair and that Clark, who received state support and benefits because she is blind, was not as blind as she pretended. The State initially charged Baines with first degree rape with a firearm enhancement, but it amended the charges to two counts of fourth degree assault with sexual motivation.

On February 24, 1999, Baines entered an Alford plea to both counts in the amended information and stated: Although I maintain my innocence I am entering into this plea agreement because after reviewing the facts and law with my attorney I believe a jury would find me guilty of the crime charged in the Amended Information if the case proceeded to trial and I desire to take advantage of the State’s recommendation. Clerk’s Papers (CP) at 22. He also assured the court that his plea was voluntary, stating: Q Now, has anyone threatened you or forced you in any way to make you enter these pleas today? A No, ma’am.

Q On paragraph 11 of this document, [your attorney] has written out the sentencing recommendation the prosecuting attorney has agreed to recommend in this case to the court regarding this matter. Have you reviewed that sentencing recommendation with [your attorney]? A Yes, ma’am. Q Other than this sentencing recommendation that the prosecutor has agreed to make, has anyone offered you anything or given you anything in return for your entering these pleas? A No, ma’am. Q And did you sign this document here; is that your signature? A Yes, ma’am. CP at 30.

The trial court accepted Baines’ pleas and suspended a one-year sentence. No restitution was ordered. Baines has never challenged the validity of his plea-based convictions on appeal nor by collateral attack. On May 13, 1999, Clark sued Baines for sexual battery and outrage. On May 21, 1999, Baines filed a counterclaim for malicious prosecution. On April 14, 2000, the trial court granted Clark’s motion for

summary judgment and dismissed Baines’ malicious prosecution counterclaim. We granted discretionary review. One issue is dispositive. Does the unchallenged judgment and sentence entered on a defendant’s Alford pleas conclusively establish probable cause and, thereby, preclude a counterclaim for malicious prosecution in a damages action brought by the victim of the crime to which the defendant pleaded guilty? We address this issue in two contexts: First, whether Baines may bring a malicious prosecution action against Clark for having been criminally prosecuted.

And second, whether Baines may bring a malicious prosecution action against Clark for suing him civilly to recover damages arising from the charges to which he pleaded guilty. ANALYSIS An action for malicious prosecution began as a remedy for unjustifiable criminal proceedings. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 120, at 889 (5th ed. 1984). Today the phrase “malicious prosecution” has a broader reading and is an available remedy in all types of civil law suits. See CR 18. It is even possible to have dueling malicious prosecution claims.

For Baines to prove that he is being maliciously prosecuted for sexual battery, he must show that Clark, the malicious prosecution defendant, did the following: (1) initiated or continued the principal action, (2) without probable cause, and (3) with malice. He must also show that (4) the principal action was terminated on the merits in favor of the malicious prosecution plaintiff and (5) the principal action injured or damaged the malicious prosecution plaintiff. See Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993).

Baines bears the burden of proving each necessary element by a preponderance of the evidence. Although a plaintiff must prove all elements of malicious prosecution, malice and want of probable cause constitute the gist of a malicious prosecution action. Hanson, 121 Wn.2d at 558. And probable cause is a complete defense to an action for malicious prosecution. Hanson, 121 Wn.2d at 558. A conviction, although later reversed, is conclusive evidence of probable cause, unless that conviction was obtained by fraud, perjury, or other corrupt means or the ground for reversal was absence of probable cause.

Hanson, 121 Wn.2d at 559-60 (citing Hall v. Dare, 147 Wash. 264, 268, 266 P. 162 (1928)); Fondren v. Klickitat County, 79 Wn. App. 850, 855, 905 P.2d 928 (1995). Baines’ conviction has not been reversed. Malicious Prosecution — Criminal Charges To maintain a malicious prosecution claim, the principal action must have terminated in favor of the party claiming he was maliciously prosecuted (in a criminal context) or is currently being maliciously prosecuted (in a civil context). Here the criminal action resulted in Baines’ convictions; it did not terminate in his favor.

Thus, Baines may not bring a malicious prosecution action for having been criminally prosecuted. Malicious Prosecution — Civil Damages Claim Other slightly different reasons support the trial court’s dismissal of Baines’ malicious prosecution claim in Clark’s civil action for sexual battery. Even if Clark’s civil battery and outrage claims were to terminate in Baines’ favor, the record before us establishes that Baines cannot satisfy the probable cause and malice elements of his malicious prosecution counterclaim.

Unchallenged Judgment and Sentence Establishes Probable Cause Baines’ plea acknowledges that there is a factual basis for his fourth degree assault with sexual motivation convictions. Additionally, the trial court found an independent factual basis for these charges before accepting Baines’ plea and Baines has not challenged this finding. See State v. Hubbard, 106 Wn. App. 149, 155, 22 P.3d 296 (“[w]hen a defendant’s equivocal factual statement is part of sen. Alford plea and there is an independent factual basis for the guilty plea, there is no reason to refuse the plea”), review denied, 145 Wn.2d 1004 (2001).

Thus, Baines’ convictions are supported by both his equivocal plea and the trial court’s unchallenged finding that an independent factual basis exists sufficient to support the fourth degree asssault with sexual motivation charges. Baines has not alleged fraud nor otherwise challenged his convictions or the guilty pleas on which they are based. A trial court must allow withdrawal of a guilty plea in order to correct a manifest injustice. CrR 4.2(f), 7.8(b); State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001).

Therefore, Baines’ unchallenged plea-based convictions are sufficient to establish probable cause for Clark’s claim for damages arising from the charges for which Baines stands convicted. If, as Baines claims, Clark is lying, his remedy was a motion to withdraw his plea under CrR 7.8(b). Because his conviction stands unchallenged, the trial court properly granted Clark’s motion to dismiss the malicious prosecution counterclaim.

Baines’ malicious prosecution claim fails because, in the face of his unchallenged criminal conviction, he cannot prove that Clark maliciously prosecuted her civil action without probable cause.

Baines’ Admission Establishes Probable Cause In his sworn statement to the court in support of his Alford plea, Baines stated: Although I maintain my innocence, I am entering into this plea agreement because after reviewing the facts and law with my attorney, I believe a jury would find me guilty of the crime charged in the amended information [fourth degree assault with sexual motivation] if this case proceeded to trial and I desire to take advantage of the State’s recommendation. CP at 22.

Although he denied that he committed the crimes, Baines acknowledged in a sworn statement that there was sufficient evidence from which a jury could find him guilty if the case proceeded to trial. In other words, despite his denial, he admitted that there were sufficient circumstances to warrant 12 ordinarily prudent jurors in believing beyond a reasonable doubt that he committed the crime charged in the amended information. That ordinarily reasonably prudent persons have information sufficient to lead them to believe that the defendant committed the crime charged is probable cause.

Probable cause has also been defined as “ ‘a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.’ ” State v. Scott, 93 Wn.2d 7, 11, 604 P.2d 943 (1980) (citations omitted). And “ ‘[t]he question of probable cause should not be viewed in a hypertechnical manner.’ ” State v. Herzog, 73 Wn. App. 34, 53, 867 P.2d 648 (1994) (quoting State v. Remboldt, 64 Wn. App. 505, 510, 827 P.2d 282 (1992)). State v. Gillenwater, 96 Wn. App. 667, 670, 980 P.2d 318 (1999), review denied, 140 Wn.2d 1004 (2000).

Baines’ sworn admission in his plea statement provides probable cause for the victim of the crime to bring an action for damages, in the manner of restitution, to the limits of the crime of conviction. In light of his admission that probable cause supports the charges, Baines cannot prove the absence of probable cause. And he cannot sustain his counterclaim for malicious prosecution.

Baines’ Admission Negates Malice Also because Baines admitted the existence of probable cause, he cannot show that Clark acted with malice by filing a civil action that is limited to recovering damages for acts constituting the elements of the gross misdemeanor sexual battery charges to which he pleaded guilty. The dissent relies on Turngren v. King County, 104 Wn.2d 293, 705 P.2d 258 (1985); Bender v. City of Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983); and Peasley v.

Puget Sound Tug & Barge Co., 13 Wn.2d 485, 125 P.2d 681 (1942), for its claim that Baines’ Alford plea-based convictions do not conclusively establish probable cause. But these cases do not control our decision here. Unlike Baines, Peasley, Bender, and Turngren were never convicted and never admitted probable cause existed for the actions brought against them. Peasley was acquitted. Peasley, 13 Wn.2d at 489. The charges were dismissed against Bender before verdict when the complaining witness refused to testify. Bender, 99 Wn.2d at 586.

And the search warrant for the Turngren home failed to provide any evidence of criminal activity. Turngren, 104 Wn.2d at 296. The dissent would allow an action for malicious prosecution in the face of an unchallenged judgment and sentence. Such procedure undermines the integrity and finality of our criminal justice system. Allowing a defendant to sue or countersue the victim to assert his innocence in a collateral civil action creates the possibility of inconsistent verdicts while allowing a defendant to maintain the benefit of his plea bargain.

If, as Baines claims, Clark is lying, and his pleas were obtained by her fraud, then his remedies are to litigate that issue in the criminal cause in which the lie is alleged to have occurred and move to withdraw his pleas. CrR 7.8. Otherwise, he must accept the consequences of his pleas, including restitution and financial reparations. CONCLUSION Termination of the principal action in favor of the malicious prosecution plaintiff remains an element of all malicious prosecution actions, criminal or civil.

A valid criminal conviction conclusively establishes that the criminal action did not terminate in the defendant’s favor and precludes a malicious prosecution claim. Here, Baines’ unchallenged guilty pleas and his admission that there was sufficient evidence from which a jury could find him guilty of fourth degree assault with sexual motivation negates the “without probable cause” and “malice” elements of his malicious prosecution counterclaim.* We hold that the trial court properly granted Clark’s motion to dismiss Baines’ malicious prosecution counterclaim and affirm. Bridgewater, J., concurs. North Carolina v.

Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). RCW 9.95.210(3) provides: The superior court shall order restitution in all cases where the victim is entitled to benefits under the crime victims’ compensation act,

chapter 7.68 RCW. If the superior court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims’ compensation act, the department of labor and industries, as administrator of the crime victims’ compensation program, may petition the superior court within one year of imposition of the sentence for entry of a restitution order.

Upon receipt of a petition from the department of labor and industries, the superior court shall hold a restitution hearing and shall enter a restitution order. (Emphasis added.) We also note that the trial court could have imposed a restitution award that included general damages and could have included pain and suffering damages because the matter was not a felony. State v. Morgan, 8 Wn. App. 189, 504 P.2d 1195 (1973). The Sentencing Reform Act of 1981,

chapter 9.94A RCW, which governs felony sentencing excludes restitution damages for pain and suffering. RCW 9.94A.753(3) (formerly RCW 9.94A.142(1) (1997)). CR 18 states: A party asserting a claim to relief as an original claim, counterclaim, cross claim, or third party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party. ...

Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action-, but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money. (Emphasis added.) RCW 4.24.350 allows a defendant in a malicious prosecution lawsuit to counterclaim malicious prosecution.

In such actions, the plaintiff alleges malicious criminal prosecution for bringing a criminal action while the defendant alleges malicious prosecution in the bringing of the civil action claiming malicious prosecution of the criminal action. The remaining two elements, (6) resulting in special injury and (7) the arrest or seizure of property, are not relevant to this discussion. See Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 964, 603 P.2d 828 (1979). See ER 801(d)(2); N.Y. Underwriters Ins. Co. v. Doty, 58 Wn. App. 546, 551, 794 P.2d 521 (1990). CrR 7.8(

b) states: On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.6;

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void; or

(5) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and .140. A motion under

section (

b) does not affect the finality of the judgment or suspend its operation. (Emphasis added.) RCW 9A.44.020(1) (statement of rape victim, if believed, sufficient as a matter of law). Baines’ statement would not preclude his claim for malicious prosecution if Clark had brought a claim for rape or assault with a weapon — elements of the charges dismissed in exchange for the plea. Clark’s action is limited to recovery of damages the court should have imposed in sentencing Baines. See RCW 9.94A.753(9). But see Falkner v. Foshaug, 108 Wn.

App. 113, 29 P.3d 771 (2001) (following successful appeal, criminal defendant not precluded from suing Ms defense attorney for malpractice after entering Alford plea to lesser charge). Relying on cases from Division One of tMs court, Baines asserts that an Alford plea does not collaterally estop a defendant from asserting a malicious prosecution claim brought by the victim of the crime of wMch he was convicted. However, Safeco Insurance Co. of America v. McGrath, 42 Wn. App. 58, 708 P.2d 657 (1985), review denied, 105 Wn.2d 1004 (1986), and Doty, 58 Wn. App. 546, on wMch Barnes relies, are distmgmshable.

Both Mvolved an msurer’s duty to defend under the terms of a contract. The cases do appear to limit collateral estoppel analysis to issues actually folly litigated at trial. The doctrine of collateral estoppel applies only in civil cases where a defendant in the civil case was previously convicted of criminal charges after a trial, stating that this was because the defendants had a “foil and fair opportunity” to litigate the issue. McGrath, 42 Wn. App. at 62. But a defendant who enters a plea of guilty — Alford or not — has been offered a foil and fair opportunity to litigate the charges against him.

And he has knowingly and voluntarily elected not to litigate it. Thus, he is estopped from maintaining a malicious prosecution suit against a victim seeking damages limited to and arising directly from the action to which he elected to forgo litigation by entering a plea of guilty. The public’s interest injudicial economy and the finality of judgments requires that a defendant be bound by his knowing and voluntary plea.

Certainly the victim of a crime cannot be said to have acted with malice by suing the defendant who was lawfully convicted of having committed a crime against her in order to recover damages from the crime of which he was convicted and to which he elected not to offer a defense. Additionally we note that Hadley v. Maxwell, 144 Wn.2d 306, 27 P.3d 600 (2001), addresses the adjudicating of civil infractions and is neither controlling nor persuasive in the circumstances presented here.