STATE v. LEWIS, 148 Wn. App. 1020 (2009)

No. 36862-5-II.The Court of Appeals of Washington, Division Two.
January 21, 2009.

Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00414-1, Gordon Godfrey, J., entered October 8, 2007.

Affirmed
by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Bridge-water, J.

UNPUBLISHED OPINION
HUNT, J.

Aaron C. Lewis appeals his jury conviction for felony violation of a no contact order (NCO), based on the jury’s finding that he had two prior convictions for violations of NCOs. He argues that the State failed to prove the validity of one of those prior convictions. A commissioner of this court initially considered his appeal as a motion on the merits, under RAP 18.14, but then referred it to a panel of judges. Concluding that the State proved the validity of the prior conviction, we affirm Lewis’s conviction, judgment and sentence.

FACTS
On July 21, 2007, Aaron Lewis confronted his wife, Heidi, on the street. He threatened her and tried to hit her, but missed. Driving by, Officer Steve Timmons heard two people arguing and saw a man and two women standing on the street corner. After talking to the parties, Officer Timmons discovered that an NCO prohibited Lewis from contacting Heidi. Officer Timmons then placed Lewis under arrest for violating the NCO.

The State charged Lewis with assault in violation of a no contact order-domestic violence and with violation of a no contact order-third or subsequent violation of any similar order pursuant to RCW 10.99.020 and RCW 26.50.110. The parties stipulated that Lewis had previously been convicted of violating an NCO in July 2007 in Grays Harbor County Superior Court. But Lewis objected to the State’s planned introduction of a 2007 Hoquiam Municipal Court conviction for violation of an NCO:

While we’re on the topic of prior convictions, I have an issue with the Hoquiam conviction. Just by looking through the statement of defendant on plea of guilty, it doesn’t seem that it’s a valid plea. It doesn’t list the elements. The first count, violation of a no-contact order, which is the one that is at issue right now, the elements listed are to violate the terms of the no-contact order, and that is insufficient. It doesn’t name the time, doesn’t name the place, it doesn’t name the mindset, and so we believe that it’s invalid, especially when you consider the fact that it’s an ALFORD[1] plea and Mr. Lewis states, I do not believe I am guilty of this crime but I feel I would be convicted. If he’s not apprised of all the elements of the crime, then there’s no way for him to make that decision that he believes he would be convicted.

Report of Proceedings (RP) Sept. 27, 2007 at 14.

The State responded that the citation contained the elements of the crime and therefore provided support for Lewis’s guilty plea. The trial court allowed the State to introduce the conviction because (1) the citation stated the time and date, and (2) Lewis indicated in his plea of guilty that he had been advised of his rights.

Because Heidi claimed that extreme intoxication prevented her from remembering the events in question, Officer David Parkinson read her statement into the record as a recorded recollection. During the testimony of Sergeant Joseph Chastain, who had interviewed Lewis after his arrest, the State introduced the citation issued to Lewis in the Hoquiam Municipal Court. Lewis did not object.

After the State rested, Lewis moved to dismiss, arguing that: (1) the State had not proven beyond a reasonable doubt that he was the Aaron Lewis in the Hoquiam citation; (2) the Hoquiam guilty plea was invalid because it did not list all elements of the crime, particularly that Lewis knowingly violated the NCO; and (3) the State failed to prove enough evidence such that a reasonable juror could believe that Lewis assaulted Heidi. The trial court denied the motion, concluding that (1) the State presented sufficient evidence that the Aaron Lewis in this case is the Aaron Lewis on the Hoquiam citation; and (2) Heidi’s statement provided evidence of assault.

The jury found Lewis guilty of felony violation of a no contact order. On the special verdict form, the jury found that Lewis’s conduct in violating the NCO did not constitute assault; but it did find that he had been previously convicted twice for violating an NCO.[2]

Lewis moved for arrest from judgment or new trial, under CrR 7.4 or CrR 7.5, renewing his argument that the State failed to prove the validity of the prior Hoquiam conviction. The trial court denied Lewis’s motion. He appeals.

ANALYSIS
Lewis argues that the State failed to provide sufficient evidence to prove that he had two prior valid convictions for violation of an NCO. Specifically, Lewis renews his argument that the State failed to prove that he voluntarily pleaded guilty to the Hoquiam charge because his plea of guilty did not list all the essential elements of the crime charged. This argument fails.

I. Timeliness
The State responds initially, but without authority, that Lewis did not timely raise the issue or preserve any error because he did not raise the issue until the jury was selected, did not propose jury instructions, and did not provide notice to the State that he would use such a defense. The State’s argument fails.

Lewis raised the issue before trial when the parties discussed the prior convictions. In addition, he renewed his challenge at the close of the State’s case and after the jury returned its verdict.

Further, there is no requirement that a defendant raise a challenge to the constitutionality of a predicate offense by any formal means. A defendant making such a challenge need only call attention to the alleged unconstitutionality of the plea of guilty for the burden of proof to shift to the State. See State v. Swindell, 93 Wn.2d 192, 197, 607 P.2d 852
(1980) (“once a defendant calls attention to the alleged constitutionality of a plea of guilty . . . the State must prove beyond a reasonable doubt [] that the plea was made voluntarily”; State v. Holsworth, 93 Wn.2d 148, 159, 607 P.2d 845 (1980) (“defendant must first call attention to the inappropriateness of using a . . . plea”). Lewis properly raised a challenge to the constitutional validity of his earlier guilty plea.

II. Voluntariness of Prior Plea
The question, then, is whether the State proved that Lewis voluntarily pleaded guilty in Hoquiam Municipal Court to a prior violation of an NCO. A defendant may challenge the constitutional validity of a predicate conviction as a defense to a felony charge for violation of an NCO. State v. Carmen, 118 Wn. App. 655, 667, 77 P.3d 368 (2003), review denied, 151 Wn.2d 1039 (2004). The defendant bears the initial burden of offering a “colorable, fact-specific argument” supporting the claim of error in the predicate conviction. State v. Summers, 120 Wn.2d 801, 812, 846 P.2d 490 (1993). Having called attention to the issue, the burden then shifts to the State to prove beyond a reasonable doubt that the predicate conviction is constitutionally sound. Summers, 120 Wn.2d at 812 Holsworth, 93 Wn.2d at 159.

The validity of a predicate offense is a question of law. State v. Miller, 156 Wn.2d 23, 24, 123 P.3d 827 (2005). The trial court cannot permit the State to admit an invalid, vague, or otherwise inapplicable conviction. Miller, 156 Wn.2d at 24. We review de novo the validity of a predicate offense. Carmen, 118 Wn. App. at 663, 665.

A guilty plea is constitutionally valid if made knowingly, voluntarily, and intelligently. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). We look at the totality of the circumstances to determine whether the guilty plea meets constitutional requirements. Id.
A guilty plea cannot be voluntary unless the defendant is apprised of the nature of the charge. State v. Keene, 95 Wn.2d 203, 207, 622 P.2d 360
(1980) (citing Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257, 49 L. Ed. 2d 108 (1976)). Apprising the defendant of the nature of the defense need not “always require a description of every element of the offense.” Holsworth, 93 Wn.2d at 153 n. 3 (quoting Henderson, 426 U.S. at 647 n. 18). But the defendant must be “aware of the acts and requisite state of mind in which they must be performed to constitute a crime.” Holsworth, 93 Wn.2d at 153 n. 3.

Lewis argues that his Hoquiam guilty plea was involuntary because his Statement of Defendant on Plea of Guilty does not list the required mental element that he knowingly violated the NCO. But the Statement of Defendant on Plea of Guilty form need not list the requisite mental state if other documents referenced in the Statement of Defendant on Plea of Guilty form do so. Keene, 95 Wn.2d at 208-09. Keene argued that he did not plead guilty knowingly, intelligently, and voluntarily because the plea statement did not list the requisite specific intent. Keene, 95 Wn.2d at 208. The Washington Supreme Court rejected that argument and concluded that Keene knew the requisite intent because: (1) the information included the specific intent; (2) Keene pleaded guilty to the crime “as charged in the information” and acknowledged receiving a copy of the information; and (3) Keene assured the trial court judge that he had thoroughly read the plea statement. Keene, 95 Wn.2d at 208-09.

Similarly, while Lewis’s Statement of Defendant on Plea of Guilty in Hoquiam Municipal Court did not identify the requisite mental intent, the criminal citation described the offense of violation of an NCO as “knowingly violate a protection order issued by OSMC.” Clerk’s Papers (CP) at 35. Additionally, Lewis’s Statement of Defendant on Plea of Guilty stated that he was pleading “guilty to the crime of violation of a no contact order and harassment as charged in the complaint or citation and notice,” and he acknowledged that he “received a copy of that complaint or citation and notice.” CP at 38. There is sufficient evidence that Lewis knew the requisite mental state and therefore voluntarily pleaded guilty in Hoquiam Municipal Court. The trial court did not err in finding his Hoquiam conviction admissible.

From the admissible evidence, the jury had sufficient evidence to find that Lewis had been twice convicted previously of violating an NCO. Thus, it had sufficient evidence to find Lewis guilty of felony violation of an NCO in this case. We affirm his conviction, judgment and sentence.

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 pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER, J., PENOYAR, A.C.J., concur