People v. McElwee

Opinion

EPSTEIN, P. J.

Dwayne McElwee appeals from an order of the superior court denying a writ of error

coram nobis.

For reasons explained in the opinion, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On April 20, 2004, Dwayne McElwee filed a petition for writ of error

coram nobis

to vacate the judgment entered against him on March 5, 1984. McElwee asserted in the petition that on March 5, 1984, pursuant to a plea bargain, he pled guilty to second degree murder for the murder of Gary Morris committed September 30, 1981, a lesser offense to the charged crime of first degree murder. As part of the bargain, a firearm use allegation was stricken. McElwee was sentenced to an indeterminate term of 15 years to life in prison. On February 4, 2004, the Board of Prison Terms held a subsequent parole hearing and Deputy District Attorney Dave Dahle argued against a parole date. “[T]he same District Attorney’s Office, through its representative Dave Dahle, who 20 years ago, agreed that [McElwee’s] crime was second degree murder and entered into the plea bargain with petitioner, violated . . . McElwee[’s] right to Due Process by taking a different position in front of the Board Panel. Deputy District Attorney Dave Dahle described for the Board what he considered the commitment offense to be ‘a cold, calculated, execution-style murder.’ . . . [f] In doing so he was essentially arguing that the murder was of the first degree and petitioner should be punished

[1351]

accordingly.” McElwee asserted by these actions the deputy district attorney subverted and circumvented the basis of the plea bargain. McElwee claimed he gave the state the substantial benefit of a murder conviction without protracted proceedings when he waived any defenses, i.e. those predicated on such facts as diminished capacity because he had been under the influence of PCP and such a defense was available for crimes committed in September 1981.