In Re Francis, 242 P.3d 866

Background

Shawn Francis pleaded guilty to felony murder of Jason Lucas, second degree assault of D'Ann Jacobsen, and attempted first degree robbery of Jacobsen, all arising from the same conduct sequence.
The State used the second degree assault to elevate the attempted robbery to first degree, creating a potential double jeopardy issue.
Francis attacked Lucas and Jacobsen with a baseball bat to steal $2,000; Lucas died from injuries.
Court sentenced: felony murder 347 months, assault 14 months, robbery 40.5 months, all concurrent.
Court of Appeals dismissed on double jeopardy grounds; Washington Supreme Court granted review.
The central issue is whether duplicative convictions arising from the same conduct violate double jeopardy and what remedy applies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Do Francis's convictions violate double jeopardy for the same conduct?	Francis arguing duplicative convictions violate double jeopardy.	State contends the offenses are separate punishments under statutory definitions.	Yes; second degree assault conviction must be vacated as it merges with attempted robbery.
Did Francis waive a double jeopardy challenge by pleading guilty?	Pleading guilty does not waive all double jeopardy challenges.	Guilty plea may waive some challenges but not the power to convict multiple offenses.	No waiver; double jeopardy challenge preserved.
Did the court violate double jeopardy by convicting both attempted first degree robbery and second degree assault?	Assault was used to elevate the robbery; this constitutes a single offense.	The two offenses can be separate under merger or other tests.	Yes; the assault conduct was inseparable from the robbery as charged, merging the convictions; vacate second degree assault.
Did the convictions for felony murder of Lucas and attempted robbery of Jacobsen violate double jeopardy?	Two victims could support two separate robberies.	Tvedt allows multiple robberies if property is divisible among victims.	No double jeopardy violation; two victims allow separate counts; but the Jacobsen assault/robbery issue remains.
What is the appropriate remedy for the double jeopardy violation found?	Remedy should address the duplicative conviction.	Remedy should maintain as much of plea as possible.	Vacate the lesser second degree assault conviction and remand for resentencing.

Key Cases Cited

State v. Freeman, 153 Wash.2d 765 (Wash. 2005) (merger doctrine; independent purpose or effect considered for punishment)
State v. Hughes, 166 Wash.2d 675 (Wash. 2009) (guilty plea does not automatically waive double jeopardy in all contexts)
State v. Beals, 100 Wash.App. 189 (Wash. App. 2000) (discussion of substantial step and charges for attempted robbery)
State v. Tvedt, 153 Wash.2d 705 (Wash. 2005) (unit of prosecution; multiple robberies for divisible property)
State v. Vladovic, 99 Wash.2d 413 (Wash. 1983) (merger doctrine and independent purposes)
State v. Johnson, 92 Wash.2d 671 (Wash. 1979) (separate and distinct injury exception to merger)
State v. Kier, 164 Wash.2d 798 (Wash. 2008) (independent purpose or effect contextualized within merger framework)
Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (basic test for whether offenses are the same in law and fact)
State v. Frohs, 83 Wash.App. 803 (Wash. App. 1996) (separate and distinct injury to support separate punishment)
In re the Personal Restraint Petition of Shale, 160 Wash.2d 489 (Wash. 2007) (lead to Knight and limitations on piecemeal challenges)