The opinion
FILED -
DIV I
COURT OF APPEALS
WASI-i111G1 011
STATE OF
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2q11 JUL 31 tVi10;
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 76747-0-1
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JUSTIN PHILLIP DAVIS, )
)
Appellant. ) FILED: July 31, 2017
SCHINDLER, J. — The State charged Justin Phillip Davis with drive-by shooting,
three counts of assault in the first degree while armed with a firearm, unlawful
possession of a firearm in the first degree, and witness tampering. After several days of
trial testimony, Davis pleaded guilty to drive-by shooting and unlawful possession of a
firearm in the first degree. For the first time on appeal, Davis argues the court did not
have an adequate factual basis to accept his plea to the crime of drive-by shooting.
Davis also challenges calculation of his offender score, the conditions of community
custody, and imposition of the mandatory criminal filing fee. We affirm.
FACTS
On May 22, 2015, the State charged Justin Phillip Davis with drive-by shooting in
violation of RCW 9A.36.045(1), three counts of assault in the first degree while armed
with a firearm in violation of RCW 9A.36.011(1)(a), unlawful possession of a firearm in
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the first degree in violation of RCW 9.41.040(1)(a), and tampering with a witness in
violation of RCW 9A.72.120(1)(a). Davis entered a plea of not guilty.
Before trial, the court found Davis knowingly, intelligently, and voluntarily waived
his right to counsel and granted his request to represent himself. The court appointed
standby counsel to assist Davis.
The jury trial began on June 11,2015. The State called a number of witnesses
to testify, including Davis's girlfriend Angela Radford, Radford's 18-year-old son Leilua
Samaga, police officers, a Tacoma Police Department forensic specialist, a Tacoma
Police Department latent finger print examiner, and a Washington State Patrol Crime
Laboratory(WSPCL)forensic scientist.
Radford testified that between 1:00 a.m. and 4:00 a.m. on November 17, 2014,
Davis left her apartment in a white Toyota car "to go make a sale" at a hotel in Tacoma.
Radford said Davis called her a short time later "to come get him" because he "just got
robbed" and the robbers had taken his car keys. Radford drove to pick up Davis in her
silver Dodge Avenger and returned to her apartment. Radford testified that the next
morning at approximately 9:00 a.m., she, Davis, and Samaga drove back to the hotel.
Radford said she drove her Dodge Avenger, Davis was in the front passenger seat, and
Samaga was in the back seat. Radford stated that when they got to the hotel, they saw
three individuals getting into Davis's Toyota. Radford said Davis told her to follow the
Toyota. Radford testified that after following the Toyota for 5 or 10 minutes, Davis
"pulled out a gun and started shooting at them."
Q As you were following the vehicle, what happened?
A . . . We continued to follow them, and we turned down, I believe
82nd Street, and then [Davis] pulled out a gun and started shooting
at them.
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. . ..
Q What did you see Mr. Davis doing? Describe to the jury what he
was doing.
A Shooting at the car.
Radford testified Davis fired "a lot" of shots at the Toyota.
Samaga testified there were three people inside the Toyota. Samaga said that
Davis rolled down the front passenger-side window and "started shooting" at the Toyota.
• Now, as you were following the vehicle, what happened?
A We followed the car.
Q What happened after you followed the car?
A [Davis] started shooting. ...
... Could you repeat what you said?
A He turned down the hand window, and we were riding, following his
car, and then he started shooting towards his car.
Q You just said a lot of stuff, you indicated that he rolled down the
window?
A Yeah.
Tacoma Police Officer Jared Williams testified that during a search of the Dodge
Avenger, he found a loaded .40 caliber Glock pistol, a loaded .380 caliber Davis
Industries pistol, and a spare magazine for the Glock pistol in the trunk. Officer Jason
Mills testified there were "bullet strikes" on the Toyota Camry.
Tacoma Police Department Forensic Specialist Donovan Valez recovered 11
spent shell casings and two "bullet fragments" from the street where the shooting
occurred. Valez testified he found a latent fingerprint impression on one of the .40
caliber cartridges in the spare magazine found in the trunk of the Dodge. Tacoma
Police Department Latent Fingerprint Examiner Toni Martin testified that the fingerprint
found on the .40 caliber cartridge matched Davis's right thumb.
WSPCL Supervising Forensic Scientist Terry Franklin testified he examined the
11 spent shell casings recovered by the police. Franklin testified that the shell casings
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No. 76747-0-1/4
were fired from the .40 caliber Glock the police found in the trunk of the Dodge.
On June 17, the State filed an amended information. Davis agreed to plead
guilty to drive-by shooting and unlawful possession of a firearm in the first degree as
charged in the amended information.
In the "Statement of Defendant on Plea of Guilty to Non-Sex Offense," Davis
describes in his "own words" why he is guilty of the charged crimes.
The judge has asked me to state what I did in my own words that makes
me guilty of this crime.
This is my statement: On Nov[ember] 17, 2014 I fired a gun from a
moving vehicle creating a substantial risk of death or serious physical
injury to individuals in and around the immediate area of the motor vehicle.
I was a passenger at the time. I also have a previous conviction for a
serious offense and am prohibited from owning or possessing a firearm.
All this took place in Pierce Co[unty,] WA.
Davis also entered into a "Stipulation on Prior Record and Offender Score."
Davis stipulated that he had an offender score of 7 for both counts.
At the hearing on the guilty plea, the trial court conducted an extensive colloquy
on entry of the guilty plea. The court specifically asked Davis about his statement that
he was guilty of the crime of drive-by shooting and unlawful possession of a firearm.
... It says here in paragraph 11 that: On November 17th, 2014, I
fired a gun from a moving vehicle creating a substantial risk of
death or serious physical injury to individuals in and around the
immediate area of the motor vehicle. I was a passenger at the
time. I also have a previous conviction for a serious offense and
am prohibited from owning or possessing a firearm. All this took
place in Pierce County, Washington.
Mr. Davis, is that a correct statement?
A Yes, sir.
Is that what happened?
A Similar.
Say again?
A It was similar.
Sir, let me ask you this, did you fire a gun from a moving vehicle?
A Yes, sir.
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Had you had a previous conviction for what is defined as a serious
offense under the statute?
A Yes, sir.
The court found Davis knowingly, intelligently, and voluntarily entered into the
Statement of Defendant on Plea of Guilty and was guilty as charged.
I'm going to find that Mr. Davis's plea is knowingly, intelligently, and
voluntarily rendered, and, accordingly, I'm going to accept his plea, find
him guilty of those two offenses that are contained in the Second
Amended Information.
At the June 24 sentencing hearing, Davis filed a motion to withdraw his guilty
plea. In his affidavit, Davis states,"The defendant should be permitted to withdraw his
guilty plea since there existed only an ambiguous expression of qualified guilt coupled
with as [sic] statement of facts." The court denied the motion to with draw the guilty
plea.
[T]he Court ... engaged in what I believe to be was a thorough
providency [sic] inquiry with Mr. Davis to ensure that he understood the
nature and the consequences of the rights he was relinquishing by
entering into this plea. And the Court was satisfied, I think the Court
continues to be satisfied, that Mr. Davis's entry of a guilty plea was
knowingly, intelligently, and voluntarily rendered. Therefore, the court
respectfully denies his motion to withdraw his guilty plea.
The court sentenced Davis to 70 months of confinement. The court waived
imposition of all discretionary fees and costs. The court ordered Davis to pay the
mandatory victim penalty assessment, DNAI database fee, and criminal filing fee.
ANALYSIS
Motion to Withdraw Guilty Plea
Davis argues the court erred in denying his motion to withdraw his guilty plea.
For the first time on appeal, Davis claims the court violated CrR 4.2(d) by entering
1 Deoxyribonucleic acid.
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judgment on his guilty plea to the drive-by shooting charge without an adequate factual
basis for the plea.2
CrR 4.2(d) states:
The court shall not accept a plea of guilty, without first determining that it
is made voluntarily, competently and with an understanding of the nature
of the charge and the consequences of the plea. The court shall not enter
a judgment upon a plea of guilty unless it is satisfied that there is a factual
basis for the plea.
As a general rule, we do not consider issues raised for the first time on appeal
unless the alleged error is a manifest constitutional error. RAP 2.5(a)(3); State v.
Gentry, 183 Wn.2d 749, 760, 356 P.3d 714(2015); State v. Kalebaugh, 183 Wn.2d 578,
583, 355 P.3d 253(2015); State v. Arredondo, 188 Wn.2d 244, 262-63, 394 P.3d 348
(2017). It is the appellant's burden to show that the alleged error was both "truly of
constitutional dimension" and "manifest." State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d
756(2009); State v. Hart, 195 Wn. App. 449,460, 381 P.3d 142(2016).
Although CrR 4.2(d) requires a trial court to be "satisfied that there is a factual
basis for the plea," this requirement is procedural and not constitutionally required.
State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996); State v. Bird, 187 Wn.
App. 942, 945, 352 P.3d 215 (2015); In re Pers. Restraint of Hews, 108 Wn.2d 579,
591-92, 741 P.2d 983(1987); In re Pers. Restraint of Hilyard, 39 Wn. App. 723, 727,
695 P.2d 596 (1985). Because Davis did not challenge the factual basis of the plea
under CrR 4.2(d) below and does not argue his plea was not voluntary, intelligent, and
knowing, we decline to consider the argument for the first time on appeal.
2 Davis does not challenge his guilty plea to the charge of unlawful possession of a firearm in the
first degree.
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Nonetheless, we note the Statement of Defendant on Plea of Guilty as well as
the testimony at trial clearly established a factual basis for the guilty plea to drive-by
shooting.3 A factual basis for a plea exists if there is evidence "sufficient for a jury to
conclude the defendant is guilty." In re Pers. Restraint of Cross, 178 Wn.2d 519, 526,
309 P.3d 1186 (2013); State v. Easterlin, 159 Wn.2d 203, 210, 149 P.3d 366 (2006);
State v. Zhao, 157 Wn.2d 188, 198, 137 P.3d 835 (2006). The trial court may look to
"any reliable source" to determine that there is a factual basis for a guilty plea. Cross,
178 Wn.2d at 526; State v. Codicia, 162 Wn.2d 912, 924, 175 P.3d 1082(2008); Zhao,
157 Wn.2d at 198.
Offender Score
Davis claims the court erred by including a 2007 Louisiana "simple burglary"
conviction in his offender score. Davis asserts the crime is not comparable to a
Washington offense. But the Louisiana burglary conviction was not included in Davis's
offender score. Although Davis's criminal history lists the 2007 Louisiana simple
burglary conviction, the Stipulation on Prior Record and Offender Score shows Davis's
offender score does not include any points for the Louisiana conviction.4 The "[s]core
by [count]" assigned to Davis's 2007 Louisiana simple burglary conviction appears as
3 Under RCW 9A.36.045(1), a person is guilty of the crime of drive-by shooting when he
"recklessly discharges a firearm. .. in a manner which creates a substantial risk of death or serious
physical injury to another person and the discharge is ... from a motor vehicle."
A person who unlawfully discharges a firearm from a moving motor vehicle may be
inferred to have engaged in reckless conduct, unless the discharge is shown by evidence
satisfactory to the trier of fact to have been made without such recklessness.
RCW 9A.36.045(2).
4 Davis also stipulated that his "criminal history and scoring are correct, producing an offender
score" of 7.
5 Not applicable.
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Community Custody Conditions
Davis challenges the following community custody conditions as
unconstitutionally vague:
[x] remain[]within[]outside of a specified geographic boundary, to wit:
per CCO[61
[x] participate in the following crime-related treatment or counseling
services: per CCO
[x] comply with the following crime-related prohibitions: per CCO.
"[V]agueness challenges to conditions of community custody may be raised for
the first time on appeal." State v. Bahl, 164 Wn.2d 739, 745, 193 P.3d 678(2008). We
review the imposition of community custody conditions for manifest abuse of discretion.
Bahl, 164 Wn.2d at 753; State v. Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059
(2010). A sentencing condition is unconstitutionally vague if
it "(1).. . does not define the [prohibited conduct] with sufficient
definiteness that ordinary people can understand what conduct is
proscribed, or (2)... does not provide ascertainable standards of guilt to
protect against arbitrary enforcement."
Bahl, 164 Wn.2d at 752-537(quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178,
795 P.2d 693(1990)). When determining whether a sentencing condition is
unconstitutionally vague, the "terms are not considered in a 'vacuum,' rather, they are
considered in the context in which they are used." Bahl, 164 Wn.2d at 754 (quoting
Douglass, 115 Wn.2d at 180).
The community custody conditions that Davis challenges are not
unconstitutionally vague.
6 Community corrections officer.
7 Ellipses in original.
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No. 76747-0-1/9
Under RCW 9.94A.703(1)(b), the trial court shall order an offender to comply with
conditions imposed by the Department of Corrections(DOC) under RCW 9.94A.704.
RCW 9.94A.703 states, in pertinent part:
(1) Mandatory conditions. As part of any term of community
custody, the court shall:
(b) Require the offender to comply with any conditions imposed by
the department[(DOC)] under RCW 9.94A.704.
RCW 9.94A.704(1) states every offender "sentenced to a period of community
custody shall report to and be placed under the supervision of the department." RCW
9.94A.704(2) requires DOC to assess the risk of reoffense and "establish and modify
additional conditions of community custody based upon the risk to community safety."
RCW 9.94A.704(2)(a). RCW 9.94A.704(2) states:
(a) The department shall assess the offender's risk of reoffense and may
establish and modify additional conditions of community custody based
upon the risk to community safety.
(b) Within the funds available for community custody, the
department shall determine conditions on the basis of risk to community
safety, and shall supervise offenders during community custody on the
basis of risk to community safety and conditions imposed by the court.
The secretary shall adopt rules to implement the provisions of this
subsection (2)(b).
RCW 9.94A.704(3) requires DOC "at a minimum" to "instruct the offender to ...
[r]emain within prescribed geographical boundaries." RCW 9.94A.704(3)(b). RCW
9.94A.704(3) states:
If the offender is supervised by the department, the department shall at a
minimum instruct the offender to:
(a) Report as directed to a community corrections officer;
(b) Remain within prescribed geographical boundaries;
(c) Notify the community corrections officer of any change in the
offender's address or employment;
(d) Pay the supervision fee assessment; and
(e) Disclose the fact of supervision to any mental health or
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No. 76747-0-1/10
chemical dependency treatment provider, as required by RCW 9.94A.722.
RCW 9.94A.704(4) authorizes DOC to "require the offender to participate in
rehabilitative programs, or otherwise perform affirmative conduct, and to obey all laws."
The trial court did not abuse its discretion in ordering Davis to comply with the
statutory community custody conditions that are authorized under RCW 9.94A.704.
Legal Financial Obligations
Davis challenges imposition of the mandatory $200 criminal filing fee. Davis
argues the court did not conduct an individualized inquiry into his ability to pay the fee.
But the criminal filing fee is statutorily mandated under RCW 36.18.020(2)(h) and must
be imposed regardless of the defendant's ability to pay. State v. Lundy, 176 Wn. App.
96, 102-03, 308 P.3d 755 (2013); State v. Gonzales, 198 Wn. App. 151, 155, 392 P.3d
1158(2017); State v. Stoddard, 192 Wn. App. 222, 225, 366 P.3d 474(2016).
Statement of Additional Grounds
In his pro se statement of additional grounds, Davis appears to argue the court
erred in denying his motion to withdraw his guilty plea based on its finding that his guilty
plea was knowing, voluntary, and intelligent.
Whether Davis's plea of guilty was voluntary and intelligent "is a question of fact
'peculiarly within the province of the trial court.'" State v. Davis, 125 Wn. App. 59, 68,
104 P.3d 11(2004)(quoting State v. McLaughlin, 59 Wn.2d 865, 870, 371 P.2d 55
(1962)). We will not overturn the trial court's finding unless it is "manifestly erroneous."
McLaughlin, 59 Wn.2d at 870. "A defendant's signature on a plea statement is strong
evidence of a plea's voluntariness." In re Det. of Scott, 150 Wn. App. 414, 427, 208
P.3d 1211 (2009); Branch, 129 Wn.2d at 642. When the court" inquire[s] orally of the
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defendant and satisfies [itself] on the record of the existence of the various criteria of
voluntariness, the presumption of voluntariness is well nigh irrefutable.'" Scott, 150
Wn. App. at 4278 (quoting Branch, 129 Wn.2d at 642 n.2).
The record supports the court's finding that Davis's guilty plea was knowing,
voluntary, and intelligent. Davis's signed Statement of Defendant on Plea of Guilty
states, "I make this plea freely and voluntarily" and "[n]o one has threatened harm of
any kind to me or to any other person to cause me to make this plea." The court also
asked Davis whether his plea was voluntary.
• Has anybody made any threats to you to harm you to make this
plea?
A No, sir, your Honor.
• Do you feel as if you're doing so voluntarily?
A Yes, sir.
• I'm satisfied this plea is knowingly, intelligently, and voluntarily
rendered.
For the first time on appeal, Davis claims the court erred in calculating his
offender score by not finding that his September 2011 convictions for unlawful
possession of a controlled substance with intent to deliver and unlawful possession of a
controlled substance(MDMA8)constituted the same criminal conduct. Because Davis
did not argue at sentencing that these offenses constitute the same criminal conduct,
Davis waived this argument and cannot raise it for the first time on appeal. State v.
Brown, 159 Wn. App. 1, 16-17, 248 P.3d 518(2010); State v. Jackson, 150 Wn. App.
877, 892, 209 P.3d 553(2009); In re Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158
P.3d 588 (2007).
quotation marks omitted.
8 Internal
9 Methylenedioxymethamphetamine, also known as "Ecstasy."
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Appellate Costs
Davis asks us to deny appellate costs. Appellate costs are generally awarded to
the substantially prevailing party on review. RAP 14.2. Where, as here, a trial court
makes a finding of indigency, that finding remains throughout review "unless the
commissioner or clerk determines by a preponderance of the evidence that the
offender's financial circumstances have significantly improved since the last
determination of indigency." RAP 14.2. Under RAP 14.2, if the State has evidence
indicating that Davis's financial circumstances have significantly improved since the trial
court's finding, it may file a motion for costs with the commissioner. State v. St. Clare,
198 Wn. App. 371, 382, 393 P.3d 836(2017).
We affirm.
WE CONCUR:
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