State v. Amos

195 P.3d 564

147 Wn. App. 217

STATE of Washington, Respondent, v. Forrest Eugene AMOS, Appellant Lance Martin Kapsh, Lane Patrick Bell Steele, Mathew (NMN) Collett, Defendants In re Personal Restraint Petition of Forrest Eugene Amos, Petitioner.

No. 36104-3-II.

No. 34375-4-II.

Court of Appeals of Washington, Division 2.

October 21, 2008.

Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant.

Forrest Eugene Amos, Walla Walla, WA, pro se.

Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 In this consolidated personal restraint petition (PRP) and direct appeal, Forrest E. Amos challenges his 120-month exceptional sentence. We affirm the direct appeal and deny Amos's PRP.

FACTS

¶ 2 On January 16, 2000, Amos, Matthew Collett, Lane Steele, and Lance Kapsh, committed a home invasion robbery of Joe Hull's home on Urquhart Road in Lewis County, Washington. Following lengthy negotiations that need not be detailed here, Amos pleaded guilty to first degree burglary (count I), first degree robbery (count II), second degree assault (count III), possession of a stolen firearm (count IV), theft of a firearm (count V), and first degree unlawful possession of a firearm (count VI). In exchange for his guilty plea, the State agreed to recommend a 120-month sentence.

¶ 3 On April 25, 2000, the superior court sentenced Amos to an agreed 120-month sentence. Amos filed a PRP in which he successfully challenged the computation of his offender score on the grounds that it erroneously included two prior juvenile convictions which had washed out. We remanded for resentencing. While Amos was serving his initial sentence, he committed and was convicted of second degree assault in the Walla Walla State Penitentiary. On remand, the resentencing court held that the convictions for counts II and III did not violate double jeopardy and entered convictions on both counts.

¶ 4 At his resentencing hearing, Amos argued that, based solely on the facts he admitted, his original second degree assault conviction in count III merged into count II, the first degree robbery conviction, and that his Walla Walla assault conviction should be excluded from his offender score. When the trial court rejected Amos's arguments, he moved to withdraw his plea. But the resentencing court denied his plea withdrawal motion. The resentencing court also told Amos that if he wanted to challenge the result, his only recourse was to file a PRP rather than a direct appeal.

¶ 5 Amos filed another PRP to challenge his resentencing. Because he was misinformed about his right to direct appeal we ruled that his PRP must be treated as a late notice of appeal.¹ We granted discretionary review, appointed counsel, and ruled that we would address issues through the petition that appellate counsel did not raise in Amos's direct appeal. We also asked the parties to brief specific questions that Amos's case initially appeared to raise.

Analysis

Direct Appeal

¶ 6 At our request, the parties extensively briefed (1) whether Amos's guilty plea bars his double jeopardy claim; and (2) whether Amos may raise a fact-based double jeopardy argument without challenging his entire plea bargain.

¶ 7 Amos does not challenge the resentencing court's denial of his motion to withdraw his guilty plea. He alleges only that his conviction and sentence on counts II and III violate the double jeopardy prohibition on entering multiple convictions for the same offense. He also argues that the trial court erred when it included his Walla Walla assault conviction in computing his offender score for purposes of resentencing.

A. Waiver

¶ 8 As a threshold matter, we note that, by requesting that the court amend the information to replace the first degree assault charge with one for second degree assault, Amos waived his right to appeal count III, his second degree assault conviction arising from the Hull home invasion robbery.

¶ 9 On April 25, 2000, in paragraph 11 of a supplemental statement of defendant on plea of guilty, Amos admitted that "[o]n 1-16-00 in Lewis Co. I assaulted another with a deadly weapon, & I was in possession (armed) of a firearm at the time of the assault." Clerk's Papers at 133. In paragraph 5(f) of that same form statement, Amos waived his right to appeal a finding of guilt after a trial.

¶ 10 "[A] guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt." In re Pers. Restraint of Bybee, 142 Wash.App. 260, 268, 175 P.3d 589 (2007) (citing Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); State v. Saylors, 70 Wash.2d 7, 9, 422 P.2d 477 (1966); Woods v. Rhay, 68 Wash.2d 601, 606-07, 414 P.2d 601, cert. denied, 385 U.S. 905, 87 S.Ct. 215, 17 L.Ed.2d 135 (1966); In re Habeas Corpus of Salter, 50 Wash.2d 603, 606, 313 P.2d 700 (1957)). Our Supreme Court held that, "[o]rdinarily, a plea of guilty constitutes a waiver by the defendant of his right to appeal, regardless of the existence of a plea bargain." State v. Majors, 94 Wash.2d 354, 356, 616 P.2d 1237 (1980) (citing Young v. Konz, 88 Wash.2d 276, 283, 558 P.2d 791 (1977); State ex rel. Fisher v. Bowman, 57 Wash.2d 535, 536, 358 P.2d 316 (1961)); see also, State v. Moten, 95 Wash.App. 927, 930-31, 976 P.2d 1286 (1999) (discussing rare situations in which a guilty plea does not waive appeal).

¶ 11 In State v. Knight, 162 Wash.2d 806, 174 P.3d 1167 (2008), our Supreme Court held that the defendant's bargained-for guilty plea did not preclude her from appealing her convictions on the grounds that her two plea-based conspiracy convictions were for a single conspiracy under the double jeopardy "unit of prosecution" doctrine. Unlike other double jeopardy doctrines, "unit of prosecution" inquires into whether the State may charge multiple counts of violating the same statute, rather than whether a sentencing court may enter multiple convictions that were properly charged. See State v. Leyda, 157 Wash.2d 335, 347 n. 9, 138 P.3d 610 (2006); State v. Freeman, 153 Wash.2d 765, 770, 108 P.3d 753 (2005); State v. Adel, 136 Wash.2d 629, 635, 965 P.2d 1072 (1998). The high court reasoned that, because the State could not lawfully charge Knight with two conspiracy counts, her guilty plea did not give the court jurisdiction to impose a sentence on both counts. Knight, 162 Wash.2d at 811, 813, 174 P.3d 1167. "[C]laims which go to `the very power of the State to bring the defendant into court to answer the charge brought against him' are not waived by guilty pleas." Knight, 162 Wash.2d at 811, 174 P.3d 1167 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)).

¶ 12 Knight is inapposite to this case. Amos argues that his conviction for second degree assault charged in count III must be vacated because it is the same offense as the first degree robbery charged in count II. But the "same offense" double jeopardy doctrine does not "go to `the very power of the State to bring the defendant into court.'" Knight, 162 Wash.2d at 811, 174 P.3d 1167 (quoting Blackledge, 417 U.S. at 30, 94 S.Ct. 2098). Rather, the State may bring multiple charges based on same offense, and even obtain convictions on them, without violating any of the defendant's rights. Freeman, 153 Wash.2d at 770, 108 P.3d 753 ("same offense" doctrine prohibits entry of multiple convictions for same offense but does not prohibit State from bringing, or jury from considering, multiple charges that merge). A violation occurs only if the trial court enters multiple convictions for the same offense in the defendant's judgment and sentence. Freeman, 153 Wash.2d at 770, 108 P.3d 753. Here, the State had power to charge Amos with counts II and III, even if those charges arose from the same offense. Accordingly, the narrow exception discussed in Knight does not apply and Amos waived his right to appeal this issue when he entered his guilty plea to the amended information.

¶ 13 A contrary holding would reward defendants who manipulate and mislead courts. Such a ruling would allow a defendant to mislead the court by requesting the filing of an amended information, enter a guilty plea to the amended charge and then, without withdrawing his plea, challenge the trial court's ability to hold him accountable on the charges to which he pleaded guilty. We discourage such conduct. See, e.g., State v. Henderson, 114 Wash.2d 867, 792 P.2d 514 (1990). Amos did not plead to the initial information as charged and Washington does not recognize a demur. CrR 4.2(a).² By knowingly and voluntarily bargaining for and entering his April 25, 2000 statement of defendant on plea of guilty, Amos waived his right to appellate review of his plea-based conviction.

¶ 14 We also note that Amos improperly asks us to address the factual sufficiency of his convictions. By pleading guilty, a defendant admits factual and legal guilt for the charged crime. Bybee, 142 Wash.App. at 268, 175 P.3d 589 (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). The guilty plea thus provides a sufficient and independent factual basis for conviction and punishment. See Haring v. Prosise, 462 U.S. 306, 321, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983) (quoting Menna, 423 U.S. at 63 n. 2, 96 S.Ct. 241). A claim that potential trial evidence never presented because the defendant pleaded guilty would have been constitutionally insufficient is, therefore, irrelevant and the guilty plea precludes it. See State v. Carrier, 36 Wash. App. 755, 757, 677 P.2d 768 (1984); see also State v. Davis, 29 Wash.App. 691, 695-96, 630 P.2d 938 (contrasting trial by stipulation and guilty plea in which the defendant admits his guilt), review denied, 96 Wash.2d 1013 (1981).

¶ 15 Here, Amos seeks to...