STATE v. MODICA, 28986-5-II (Wash.App. 6-24-2003)

No. 28986-5-IIThe Court of Appeals of Washington, Division Two.
Filed: June 24, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 02-1-01760-8 Judgment or order under review Date filed: 05/23/2002

Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, P.O. Box 7718, Tacoma, WA 98406-0718.

Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.

SEINFELD, J.

Marc Anthony Modica appeals his guilty plea conviction of attempted first degree theft, arguing that his plea was invalid because the trial court failed to establish an adequate factual basis for the plea. We affirm.

FACTS
On April 15, 2002, the State charged Modica with attempted second degree robbery. The statement of probable cause contained the following description of the alleged offense:

The defendant is known by the victim by sight. She saw the defendant on this date and he approached her quietly. The defendant grabbed the strap of her purse and pulled forcefully. The strap is long and strong according to the victim. The victim screamed and was about to fall when the defendant let go of the strap. The victim states she was pushed, and she then pulled back when the defendant grabbed the strap.

The defendant then walked away and was identified by a witness about a block away. This witness identified the defendant by a first name and noted he had heard screaming just before contacting him. The defendant asked for a cigarette from one of the people present and then said, `Marie just called the police on me,’ and continued to walk away. This witness and the victim both identified the defendant in a photo montage.

Clerk’s Papers (CP) at 3.

As the result of a plea agreement, Modica entered an Alford/Newton[1]
plea to the amended charge of attempted first degree theft. In his statement on plea of guilty, Modica provided the following statement `I do not believe I am guilty of this offense. However I understand if I went to trial [there is a substantial likelihood] I could be found guilty of this offense. Therefore I agree to plead guilty to take advantage of the plea agreement offered by the Prosecutor.’[2] CP at 13. Modica did not mark the box indicating that he agreed to allow the trial court to review the statement of probable cause to establish a factual basis for the plea.

At the plea hearing, Modica’s counsel informed the trial court that Modica did not object to the trial court reviewing the statement of probable cause in addition to the plea agreement. Counsel told the court that although Modica was hesitant about agreeing to the plea, he agreed to the plea because he would be entitled to immediate release and counsel still believed Modica was making the plea freely and voluntarily.

The trial court verified that Modica had read the plea agreement and reviewed it with his counsel; that he understood the consequences and effect of entering the Alford/Newton plea; and that he understood the court did not have to follow the State’s sentencing recommendation. The trial court also verified that Modica believed there was a substantial likelihood he would be found guilty if he went to trial, that he was taking advantage of the State’s offer because of this, and that there was a factual basis for the plea. Although Modica’s counsel later expressed reservations about Modica entering the plea, suggesting that the alleged offense was somehow related to a landlord/tenant dispute between Modica and the victim, Modica told the court that he was entering the plea freely and voluntarily.

The trial court accepted Modica’s plea and sentenced him to 23 days of confinement and 12 months of community custody; Modica had already served the 23 days confinement. Modica did not later move to set aside the plea; he merely brought this appeal.

ANALYSIS
Modica argues that the trial court erred when it found a factual basis for the plea. He contends that the statement of probable cause considered with the prosecutor’s statement regarding the amended information[3]
fails to establish the intent element of the amended charge of attempted first degree theft.

It is well settled that a plea of guilty generally waives the right to appeal from a finding of guilt. State v. Johnson, 104 Wn.2d 338, 341, 705 P.2d 773 (1985) (quoting State v. Wiley, 26 Wn. App. 422, 613 P.2d 549 (1980)); State v. Gaut, 111 Wn. App. 875, 880, 46 P.3d 832
(2002); see also State v. Majors, 94 Wn.2d 354, 356, 616 P.2d 1237
(1980); State v. Phelps, 113 Wn. App. 347, 352, 57 P.3d 624 (2002). A `guilty plea does not, however, preclude appeal of collateral questions, such as the validity of the statute, the sufficiency of the information, the jurisdiction of the court, or the circumstances under which the plea was made.’ Gaut, 111 Wn. App. at 880 (emphasis omitted); see also Phelps, 113 Wn. App. at 352.

Here, even assuming that Modica is entitled to challenge his plea, he waived his right to do so because he did not raise this issue below. Under RAP 2.5(a), subject to certain exceptions, we `may refuse to review any claim of error which was not raised in the trial court.’ Those exceptions include (1) lack of trial court jurisdiction; and (2) a manifest error affecting a constitutional right. CrR 4.2(d), which precludes the trial court from accepting a guilty plea unless it is satisfied that there is a factual basis for the plea, is not a `constitutionally mandated procedure.’ In re Personal Restraint of Vensel, 88 Wn.2d 552, 554, 564 P.2d 326 (1977); see also State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). As Modica has not shown that his challenge falls under an exception, we decline to review the alleged error. Because Modica raises no other issues, 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 pursuant to RCW 2.06.040, it is so ordered.

MORGAN, P.J., and ARMSTRONG, J., concur.