¶1 An indivisible plea of guilty does not prevent a double jeopardy challenge based on the same offense theory where the violation is clear from the record and was not otherwise waived.
BACKGROUND
¶2 Martin, D.S., and A.A. all rented rooms in the same boarding house. On September 11, 2006, D.S. and Martin had an argument. D.S. went into her room to use the
¶3 Hearing D.S. screaming, Martin’s brother entered the room and pulled Martin away from D.S. Martin told his brother, “Let’s do her. Let’s do her now and get it over with.”
f4 Martin eventually left the residence. D.S. called A.A. and asked her to come home. After A.A. arrived, Martin returned. A.A. confronted Martin and told him to leave. Martin told A.A., “[C]all the cops again, bitch, and you’ll die.”
¶5 Martin was charged with one count of attempted second degree rape, one count of attempted indecent liberties, and two counts of felony harassment. Pursuant to negotiations, the State agreed to amend the charges to one count of second degree assault and two counts of felony harassment, for which the State would recommend concurrent sentences, and one misdemeanor count, attempted rape in the third degree, which the State would recommend be suspended subject to, among other conditions, a sexual deviancy evaluation, compliance with all recommended treatment, and registration as a sex offender. Martin entered a plea to the amended charges, and the court imposed sentence consistent with the State’s recommendation.
|6 Martin appeals. He argues that his convictions for second degree assault and attempted third degree rape violate prohibitions against double jeopardy because they
DISCUSSION
¶7 The proper interpretation and application of the double jeopardy clause is a question of law. Review is de novo.
¶8 In a single proceeding, the State may bring multiple charges arising from the same criminal conduct.
Indivisible Plea
¶9 The first question is whether Martin’s double jeopardy challenge survives his plea. A guilty plea waives even constitutional violations occurring before the plea, unless the violation involves the government’s power to prosecute.
¶10 The State’s argument principally derives from State v. Turley
¶11 In Shale, which was decided in May 2007, eight justices considered a collateral attack on double jeopardy grounds to certain convictions entered pursuant to an indivisible plea agreement. In the lead opinion, four justices relied upon Turley and held that a double jeopardy challenge to only part of the indivisible bargain would not lie.
¶12 Martin responds that the indivisibility of the plea is no obstacle after State v. Knight,
¶13 In Knight, the defendant negotiated a plea to an amended information charging conspiracy to commit second degree robbery, conspiracy to commit first degree burglary, and murder in the second degree. The agreement required Knight to testify truthfully against her coconspirators and forfeit her car. As here, nothing in the agreement addressed waiver of double jeopardy claims. The trial court accepted the pleas and imposed sentence.
¶14 Knight appealed, claiming the two conspiracy counts constituted multiple convictions for a single “unit of
¶15 The Supreme Court granted review “to determine if a single conviction can be vacated for a double jeopardy violation without rejecting an indivisible plea agreement.”
¶16 Shale’s lead opinion had treated the double jeopardy claim as an impermissible challenge to part of an indivisible plea agreement. Without mentioning Shale, Knight rejects that premise out of hand. Shale’s two opinions, each signed by four justices, announced no clear rule, whereas Knight was decided by a unanimous court. The lead opinion in Shale has been overruled sub silentio.
¶17 In State v. Amos,
¶18 We are unable to agree. The State may bring multiple charges arising from the same criminal conduct,
¶19 Further, the Knight court’s references to the power of government to prosecute are ringing echoes from celebrated cases — cases which did not explore whether there is a difference, for double jeopardy purposes, between the power to charge and the right to obtain a conviction.
¶20 Like Knight, Martin does not seek to withdraw his plea on the relevant count, and whether the plea is indivisible under Turley is therefore not pertinent.
¶21 The State seeks to distinguish Knight on its facts, focusing on the discussion of fulfillment of the plea bargain. Martin’s plea agreement allowed the State to recommend sex offender registration and treatment conditions arguably not available absent conviction for a sex offense.
¶22 But the court held that Knight met her obligations when she entered her plea.
¶23 We are therefore unable to see how Martin’s plea agreement leaves him with unfulfilled obligations preventing a double jeopardy challenge. He entered his plea. Under Knight, no more is required.
¶24 We conclude that Knight controls our analysis, and Martin may bring his double jeopardy challenge.
Same Offense
¶25 We now return to Martin’s argument that second degree assault and attempted third degree rape constitute the same offense.
¶26 The Washington Supreme Court set forth a three part test for determining whether the legislature intended multiple punishments arising from the same criminal conduct. Courts first consider express or implicit legislative intent based on the criminal statutes involved.
¶27 As charged, second degree assault requires proof of intentional assault and the intent to commit a felony (in this case, rape).
¶28 The State compares the elements of each crime and argues the two offenses are not the same in law. But where one crime is an anticipatory offense and another crime is both charged separately and used as the basis for the attempt charge, an abstract comparison of elements is not enough. As the court observed in In re Personal Restraint of Orange:
The Valentine court’s reluctance to look at the facts used to prove the statutory elements exposes a misconception about the Blockburger test. That the test has been alternatively called the “same elements” and the “same evidence” test underscores that the Blockburger test requires the court to*700 determine “whether each provision requires proof of a fact which the other does not.” Unless the abstract term “substantial step” is given a factual definition, there is simply no way to assess whether attempted murder requires proof of a fact not required in proving the assault. The Valentine court’s belief that the “substantial step” element had to remain a generic term for purposes of the “same elements” test ignores the reality that the term “substantial step” is a placeholder in the attempt statute, having no meaning with respect to any particular crime and acquiring meaning only from the facts of each case.[45]
¶29 In Orange, the two charges were based on the same shot directed at the same victim, and the evidence required to support the conviction for first degree attempted murder was sufficient to convict Orange of first degree assault.
¶30 Here, the crimes of second degree assault and attempted third degree rape (by taking the substantial step of assaulting D.S. with intent to rape her) are the same in fact and law.
¶31 The two charges were predicated on the same conduct: Martin’s assault with intent to rape D.S.
Other Issues
¶33 Finally, Martin argues that the trial court abused its discretion by denying his motion to appoint substitute counsel. At his sentencing hearing, Martin was scheduled for sentencing both in this matter and in an unrelated case involving a gun charge. Martin’s attorneys in this case informed the court that he desired to withdraw his plea. The court suggested it would proceed to sentencing on the gun charge and set this matter over. When the State interjected that misgivings did not constitute a basis for plea withdrawal, Martin’s attorney stated:
I guess my concern is that, if there is more to the reason for Mr. Martin’s desire to withdraw his plea, it seems that part of his concerns may stem from the things that [prior counsel] and I did. And it seems more appropriate for a different attorney to explore with Mr. Martin the potential grounds that he may have for wanting to withdraw his plea. . . .
But, again, if the court is going to entertain, I guess, receiving more information about this, it seems to me appropriate for him to receive new counsel on my cause number so that they can explore better, I suppose, or more thoroughly, the other grounds that he may have. I would also ask the Court to do sentencing on both of these matters at the same time, since that would allow for the presumption that they would be run concurrent.[50]
¶34 The court asked Martin to decide what he wanted to do. After conferring with Martin, his attorney
¶35 We remand for vacation of the conviction for attempted rape in the third degree and otherwise affirm.
Dwyer, A.C.J., and Cox, J., concur.
In reaching this conclusion, we must respectfully disagree with the recent decision of Division Two of this court in State v. Amos, 147 Wn. App. 217, 195 P.3d 564 (2008).
Clerk’s Papers at 3.
Id.
Id.
Id.
State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007).
State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
State v. Vladovic, 99 Wn.2d 413, 422, 662 P.2d 853 (1983) (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981)); Wash. Const. art. I, § 9 (“No person shall be . . . twice put in jeopardy for the same offense.”); U.S. Const. amend. V (same).
State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995).
Menna v. New York, 423 U.S. 61, 63 n.2, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975).
149 Wn.2d 395, 69 P.3d 338 (2003).
160 Wn.2d 489, 158 P.3d 588 (2007).
Turley, 149 Wn.2d at 400.
Id.
State v. Bisson, 156 Wn.2d 507, 519-20, 130 P.3d 820 (2006).
Shale, 160 Wn.2d at 494. The four concurring justices took the view that because Shale did not move to withdraw his pleas, the indivisibility of the plea agreement was not determinative. Rather, the concurring justices held that any collateral attack upon facially valid convictions had been waived by Shale when he negotiated an agreement that preserved his eligibility for a certain sentence, thereby generating the claimed double jeopardy violations. Id. at 502 (Madsen, J., concurring). The State does not contend Martin waived his challenge by his conduct in the plea negotiations.
162 Wn.2d 806, 174 P.3d 1167 (2008).
Id. at 810.
Id. at 813.
Id. (“Knight fulfilled the terms of the plea agreement even as she attacked her subsequent convictions.”).
Id. The court does not say why fulfillment of the plea agreement affects the relevance of indivisibility or when an unfulfilled agreement might present itself for review.
See Puget Mill Co. v. Kerry, 183 Wash. 542, 559, 49 P.2d 57 (1935) (insofar as inconsistency exists between two opinions of the same court, the later one is held to have overruled the earlier one).
147 Wn. App. 217, 195 P.3d 564 (2008).
Id. at 226 (alteration in original) (quoting Knight, 162 Wn.2d at 811).
Id. at 226-27.
Freeman, 153 Wn.2d at 770.
Id..; see also In re Pers. Restraint of Butler, 24 Wn. App. 175, 178, 599 P.2d 1311 (1979) (double jeopardy not waived by plea to first degree assault and first degree robbery arising out of the same facts).
Knight, 162 Wn.2d at 811.
See Menna, 423 U.S. at 63 n.2.
Knight, 162 Wn.2d at 811; see, e.g., Menna, 423 U.S. at 62 (second indictment for the same crime); Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (second indictment for additional charges arising out of the same facts) (distinction of double jeopardy protection is that it prevents a trial); United States v. Broce, 488 U.S. 563, 576-77, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989)
Broce, 488 U.S. at 569 (“If the [plea was both counseled and voluntary], then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.”).
The Amos court suggests that permitting the challenge would reward defendants for negotiating a constitutionally faulty plea. See Amos, 147 Wn. App. at 227. While we share these concerns, we observe that the charging decision is vested in the prosecutor, the plea requires agreement of the prosecutor, and the plea agreement can provide for waiver of any double jeopardy violations. See Freeman, 153 Wn.2d at 779. Such circumstances might, however, support a waiver analysis like that made by the concurring justices in Shale. As indicated above, no such argument is made here.
See Knight, 162 Wn.2d at 813.
At oral argument, defense counsel stated that except for the registration requirement, all the conditions would be permissible as terms of sentence on remand.
Id. at 813.
Id. at 812.
State v. Kier, 164 Wn.2d 798, 803-04, 194 P.3d 212 (2008).
None of the relevant statutes addresses whether multiple convictions for a single act of assault with intent to rape have been authorized. This is in contrast to statutes such as ROW 9A.52.050, which expressly authorizes cumulative punishment for crimes committed during the commission of a burglary. The State argues that the statutory organization and different purposes behind each statute suggest a legislative intent to separately punish second degree assault and attempted third degree rape. This is too weak an indicator of legislative intent for double jeopardy purposes. See State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979) (kidnapping and assault merge with first degree rape where they were part of the perpetration of the rape and did not have an independent purpose or effect), overruled in part on other grounds by State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999).
Kier, 164 Wn.2d at 804 (citing State v. Calle, 125 Wn.2d 769, 777-78, 888 P.2d 155 (1995); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
Calle, 125 Wn.2d at 777-78.
Id at 777.
Kier, 164 Wn.2d at 804.
RCW 9A.36.021(l)(e); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.11, at 467 (3d ed. 2008) (WPIC).
RCW 9A.44.060(1)(a), .010(7); RCW 9A.28.020(1); 11 WPIC 42.02, at 766; 11A WPIC 100.02, at 386.
45 152 Wn.2d 795, 818, 100 P.3d 291 (2004) (citations omitted) (quoting Blockburger, 284 U.S. at 304; citing State v. Valentine, 108 Wn. App. 24, 29 P.3d 42 (2001)).
Id. at 820.
Id.
The double jeopardy violation must be clear from the record presented on appeal or else be waived. Knight, 162 Wn.2d at 811. Here, Martin stipulated to the facts as described in the certification for determination of probable cause.
State v. Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006). Regardless of which offense forms part of the proof of the other and which offense carries the lesser seriousness level and intent requirement, the lesser crime for double jeopardy purposes is the conviction that carries the lesser punishment. Id. at 266-69. The parties agree that attempted third degree rape is the lesser offense here.
50 Report of Proceedings (Aug. 31, 2007) at 5-6.
State v. Stark, 48 Wn. App. 245, 252, 738 P.2d 684 (1987) (trial court’s determination of whether defendant’s dissatisfaction with court appointed counsel warrants appointment of substitute counsel will not be overturned on appeal absent abuse of discretion).
Id. at 253.