State Of Washington, Resp-cross App V. Cory Ray Jacoby, App- Cross Resp ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 80924-5-I
)
Respondent, ) DIVISION ONE
)
v. )
)
JACOBY, CORY RAY, ) UNPUBLISHED OPINION
DOB: 08/09/1975, )
)
Appellant. )
BOWMAN, J. — Cory Ray Jacoby pleaded guilty to one count of first degree
domestic violence (DV) assault and two counts of DV felony violation of a no-
contact order (FVNCO). Jacoby argues and the State concedes that the
charging document is defective as to one count of FVNCO. Jacoby contends that
the defective charging document renders his plea agreement involuntary. He
also claims the agreement amounts to an indivisible contract encompassing all
three counts so he has a right to withdraw his pleas of guilty to all three crimes.
We agree and remand to the trial court for Jacoby to withdraw his guilty pleas.
FACTS
Jacoby viciously beat his ex-girlfriend with a baseball bat and a hammer.
During the hours’ long attack, he also sexually assaulted her. Jacoby’s ex-
girlfriend required over 140 surgical staples to repair injuries to her head and
surgically implanted pins to repair her “ ‘shattered’ ” hands. She also developed
“general loss of vision” in her left eye. At the time of the attack, a no-contact
Citations and pin cites are based on the Westlaw online version of the cited material.
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order issued under a previous DV conviction restrained Jacoby from contacting
his ex-girlfriend.
The State charged Jacoby with one count of first degree DV assault and
one count of DV FVNCO. While in jail awaiting trial, Jacoby tried to call his ex-
girlfriend more than 20 times. The jail recorded the calls and forwarded them to
the prosecutor. During plea negotiations, the State told Jacoby it would add
several counts of FVNCO for the phone calls if the case proceeded to trial.
Ultimately, the parties agreed that Jacoby would plead guilty as charged to the
original two counts as well as one new count of DV FVNCO. Jacoby could ask
the court to impose an exceptional downward sentence and the State would
refrain from amending the first degree DV assault charge to attempted murder,
adding a deadly weapon enhancement, adding aggravated sentence allegations,
or adding more FVNCO counts.
The State amended its original information to include the new DV FVNCO
as count three. It alleged that Jacoby,
with knowledge that he/she was the subject of a protection order,
restraining order, or no contact order . . . issued by Snohomish
County District Court, Everett Division, . . . protecting [his ex-
girlfriend], and said order being valid and in effect, did violate the
order issued . . . and the defendant had at least two prior
convictions for violating the provisions of an order . . . , a felony;
and the victim was a family or household member.
Jacoby pleaded guilty to all three counts. Before sentencing, Jacoby
moved to withdraw his plea agreement under CrR 4.2(f), claiming his attorney
misled him into pleading guilty by incorrectly calculating his offender score. The
trial court denied his motion. At sentencing, the trial court rejected Jacoby’s
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request for a downward departure and sentenced him to a standard-range
sentence of 276 months on the assault charge and concurrent 60-month
sentences on each of the other two counts.
ANALYSIS
Jacoby appeals the trial court’s order denying his motion to withdraw his
guilty pleas and, for the first time on appeal, challenges the sufficiency of the
charging document. Jacoby claims count three of the amended information did
not include the essential element of FVNCO that he “willfully” violated the no-
contact order. See RCW 10.99.050(2)(a). In its response brief, the State
concedes the information was defective as to count three and argues we should
simply dismiss that count without prejudice. Jacoby supplemented his
assignments of error to argue that his plea agreement is an indivisible contract
permitting him to withdraw his pleas to all three counts.1
Deficient Information
Jacoby contends that we must reverse his conviction for DV FVNCO as
charged in count three because the amended information omitted an essential
element of the offense. The State concedes the error. We accept the State’s
concession.
A charging document must inform a defendant of all essential statutory
elements of the crime. WASH. CONST. art. I, § 22 (amend. 10); City of Auburn v.
Brooke, 119 Wn.2d 623, 627-28, 836 P.2d 212 (1992). “ ‘An essential element is
one whose specification is necessary to establish the very illegality of the
1
The State did not oppose Jacoby’s motion to supplement by adding this assignment of
error. The State did not file a supplemental response brief.
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behavior charged.’ ” State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013)2
(quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)).
RCW 10.99.050(2)(a)3 provides that “[w]illful violation of a court order
issued . . . is punishable under [(former)] RCW 26.50.110 [(2017)].” “Willfulness
requires a purposeful act.” State v. Washington, 135 Wn. App. 42, 49, 143 P.3d
606 (2006). A person does not willfully violate a no-contact order if they
accidentally or inadvertently contact the protected party, even if they know they
are the subject of a valid no-contact order. State v. Sisemore, 114 Wn. App. 75,
77-78, 55 P.3d 1178 (2002). Here, the charging information for count three
stated only that Jacoby “did violate the order issued.” The information did not
notify Jacoby that willfulness is an element of FVNCO.
Withdrawal of Guilty Pleas
Jacoby contends the deficient information renders his plea as to count
three involuntary, permitting him to withdraw his pleas to all counts as an
indivisibly linked “package deal.” We agree.
Due process requires that a defendant’s guilty plea be knowing, voluntary,
and intelligent. State v. Mendoza, 157 Wn 2d 582, 587, 141 P.3d 49 (2006).4
Under CrR 4.2(d), a trial court cannot accept a guilty plea unless it determines
the defendant has entered it voluntarily and with an understanding of the nature
of the charge and consequences of the plea. State v. Loos, 14 Wn. App. 2d 748,
758, 473 P.3d 1229 (2020). A defendant may withdraw a guilty plea under CrR
2
Internal quotation marks omitted.
3
Emphasis added.
4
A defendant may challenge the voluntariness of a plea agreement for the first time on
appeal. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001).
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4.2(f) to correct a “manifest injustice.” An involuntary plea is a manifest injustice.
State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974). And a guilty plea
“cannot be voluntary in the sense that it constitutes an intelligent admission
unless the defendant is apprised of the nature of the charge, ‘the first and most
universally recognized requirement of due process.’ ” In re Pers. Restraint
Petition of Keene, 95 Wn.2d 203, 207, 622 P.2d 360 (1980)5 (quoting Henderson
v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976)); see also
State v. DeRosia, 124 Wn. App. 138, 149, 100 P.3d 331 (2004). Because count
three failed to notify Jacoby of the essential elements of FVNCO, his plea of
guilty to that charge was involuntary.
A plea agreement is essentially a contract between a criminal defendant
and the State. State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003) (citing
State v. Hardesty, 129 Wn.2d 303, 318, 915 P.2d 1080 (1996)). Because a plea
agreement is a contract, we review issues requiring interpretation of a plea
agreement de novo. State v. Bisson, 156 Wn.2d 507, 517, 130 P.3d 820 (2006).
We determine whether a contract is separable or indivisible by looking at
objective manifestations that show the parties’ intent. Turley, 149 Wn.2d at 400.
A court must treat a plea agreement as indivisible when pleas to multiple counts
or charges were (1) made at the same time, (2) described in one document, and
(3) accepted in a single proceeding. Turley, 149 Wn.2d at 400. Without objective
indications to the contrary in the agreement itself, we will not look behind the
agreement to attempt to determine divisibility. Turley, 149 Wn.3d at 400. Our
5
Internal quotation marks omitted.
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Supreme Court has construed Turley as creating a “bright-line rule” mandating
withdrawal of indivisible plea agreements even where a claimed deficiency
applies to only one count. See Bisson, 156 Wn.2d at 519.
Here, the State charged Jacoby with all three counts under the same
amended information. The third count did not inform Jacoby of an essential
element of the crime. A single plea agreement incorporated the entire amended
information. Jacoby pleaded guilty to each count at the same time and the court
accepted his pleas in a single proceeding. As in Turley, these objective
manifestations show the parties intended to create an indivisible contract. The
State points to no objective indications to the contrary in the agreement itself.
We conclude that Jacoby’s plea agreement is an indivisible contract and he may
withdraw his pleas to all three counts.
We remand to the trial court to allow Jacoby to withdraw his pleas of guilty
to one count of DV first degree assault and two counts of DV FVNCO.6
WE CONCUR:
6
Because we conclude that Jacoby’s plea agreement was involuntary and he may
withdraw his pleas to all counts, we need not reach his remaining assignments of error, including
those he raises in a statement of additional grounds for review.
6