State Of Washington v. Jerry L. Davis ( 2015 )

FILED
COURT OF APPEALS
V I S I0 N II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
2015 FEB 18 M 9: 21
STYkT •
k ASHI TON
STATE OF WASHINGTON, No. 45274 -0- 11
8
consolidated with
Respondent, No. 45280 -4 -II
v.
JERRY LYNN DAVIS, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Jerry Lynn Davis appeals his conviction of attempted burglary in the
second degree, arguing that the trial court erred by finding a factual basis for his guilty plea. In
his statement of additional grounds ( SAG), Davis further alleges that he received ineffective
assistance of counsel before and during the plea proceedings. We affirm his conviction.
FACTS
The State charged Davis with burglary in the second degree and felony harassment. A few
months later, the State charged him in a separate information with trafficking in stolen property in
the first degree and theft of a motor vehicle.
Davis eventually agreed to enter an Alford' plea to an amended charge of attempted
burglary in the second degree in the first case, and to plead separately to the amended charge of
taking a motor vehicle without permission in the second degree in the second case. The trial court
found that a factual basis supported the Alford plea and that each plea was entered freely,
knowingly, and voluntarily. The trial court imposed concurrent sentences of 40 months on the
attempted burglary conviction and 29 months on the motor vehicle conviction.
Davis now appeals his attempted burglary conviction.
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North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).
45274 -0 -II / 45280 -4 -II
ANALYSIS
I. FACTUAL BASIS
Davis contends that the trial court erred by finding that a factual basis existed for his Alford
plea to attempted burglary in the second degree. He adds that because he did not understand that
the alleged facts would not support his conviction, his plea was not knowing, voluntary, and
intelligent. Because this challenge has constitutional implications, we address its merits for the
first time on appeal. RAP 2. 5( a)( 3); In re Pers. Restraint ofHews, 108 Wash. 2d 579, 592, 741 P.2d
983 ( 1987).
A conviction based on a guilty plea that is not knowing and voluntary is constitutionally
invalid. State v. Chervenell, 99 Wash. 2d 309, 312, 662 P.2d 836 ( 1983). A guilty plea is not truly
voluntary " unless the defendant possesses an understanding of the law in relation to the facts."
United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 ( 1969). Toward
McCarthy v.
this end, the trial court must determine that the conduct the defendant admits constitutes the offense
charged. In re Pers. Restraint of Bratz, 101 Wn. App. 662, 672, 5 P. 3d. 759 ( 2000). The trial
court' s determination that a factual basis exists for the plea does not require that the court be
convinced of a defendant' s guilt beyond a reasonable doubt, but only that sufficient evidence exists
to sustain a jury finding of guilt. State v. N
` ewton, 87 Wash. 2d 363, 370, 552 P.2d 682 ( 1976); State
v. Amos, 147 Wn. App. 217, 228, 195 P. 3d 564 ( 2008), abrogated sub silentio on other graounds,
State v. Hughes, 166 Wash. 2d 675, 212 P.3d 538 ( 2009). In determining factual basis, the court may
consider any reliable source of information as long as it is in the record. Amos, 147 Wash. App. at
228; State v. Arnold, 81 Wash. App. 379, 382, 914 P.2d 762 ( 1996).
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45274 -0 -II / 45280 -4 -II
In entering his Alford plea, Davis did not admit to committing attempted burglary in the
second degree but acknowledged that a jury could find him guilty based on the facts set forth in
the probable cause statement. That statement alleged that the victim saw Davis and two
accomplices approach the victim' s U -Haul, where the victim stored car parts. Davis and another
man opened the back of the U -Haul and pulled. out a radiator and two buckets. When the victim
yelled at them to get on the ground, Davis tried to pull a metal pipe free before fleeing. A car
his the locked gate. The probable cause
owned by one of accomplices was parked at victim' s
statement concluded as follows:
Per the victim, his property is fenced where it can be fenced, and there is a
steep natural barrier that cannot be fenced. The U -Haul was parked within the
fenced area. The gate to the fence is locked and there was a no trespassing sign
posted right where the defendants' vehicle was parked.
Clerk' s Papers at 4.
A person is guilty of burglary in the second degree if,with intent to commit a crime against
a person or property therein, he or she enters or remains unlawfully in a building other than a
vehicle or a dwelling." RCW 9A. 52. 030( 1). In addition to its ordinary meaning, "[ b] uilding"
includes " any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure
used for lodging of persons or for carrying on .business therein, or for the use, sale, or deposit of
goods[.]" RCW 9A. 04. 110( 5). A person is guilty of an attempt to commit a crime if, with intent
to commit a specific crime, he takes a substantial step toward committing that crime. RCW
9A.28. 020( 1).
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45274 -0 -II / 45280 -4 -II
Davis contends that the facts in the probable cause statement were insufficient to show that
he entered or attempted to enter a building because the victim' s property was not a fenced area
under RCW 9A. 04. 110( 5). We reject this contention. Davis entered an Alford plea that permitted
the trial court to rely on the probable cause statement in finding a factual basis for the plea. That
statement clearly provided that the U -Haul was parked in a fenced area. Therefore, we find that a
sufficient factual basis exists for Davis' s plea to attempted burglary in the second degree and we
reject his challenge to the validity of his plea.
II. SAG
In his SAG, Davis argues that he received ineffective assistance of counsel when his
attorney did not investigate the facts in the probable cause statement supporting his attempted
burglary charge. Davis contends further that his attorney did not depose and subpoena key
witnesses.
A defendant whose guilty plea was validly entered generally waives complaints about
alleged errors that occurred before entry of the plea. Garrison v. Rhay, 75 Wash. 2d 98, 101, 449
P.2d 92 ( 1968); In re Pers. Restraint of Teems, 28 Wn. App. 631, 637, 626 P.2d 13 ( 1981). We
note further that when Davis pleaded guilty, he acknowledged that he was waiving his right to call
witnesses to testify on his behalf. Having upheld the validity of Davis' s plea and its underlying
factual basis, we need not consider his claim of ineffective assistance of counsel.
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45274 -0 -II / 45280 -4 -II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
Melnick, J. r%
We concur:
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