In re Francis

• Decision Date: 18 November 2010
• Docket Number: No. 82619-6.,82619-6.
• Parties: In the Matter of the Personal Restraint Petition of Shawn Dominique FRANCIS, Petitioner.
• Court: Washington Supreme Court

242 P.3d 866

170 Wash.2d 517

In the Matter of the Personal Restraint Petition of Shawn Dominique FRANCIS, Petitioner.

No. 82619-6.

Supreme Court of Washington,

En Banc.

Argued May 13, 2010.

Decided Nov. 18, 2010.

Steven Witchley, Ellis Holmes & Witchley PLLC, Seattle, WA, for Petitioner.

Michelle Luna-Green, Pierce Co. Pros. Attorney, Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.

SANDERS, J.

¶ 1 We are asked to decide whether double jeopardy protection is violated where Shawn Francis pleaded guilty to felony murder of Jason Lucas, first degree attempted robbery of D'Ann Jacobsen, and the second degree assault of D'Ann Jacobsen, all arising from the same string of conduct. Because the State expressly relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes, convictions on both charges violate double jeopardy protections. We vacate the lesser second degree assault charge and remand for resentencing consistent with our holding here.

FACTS

¶ 2 Shawn Francis, accompanied by Quinn Spaulding, attacked Jason Lucas and D'Ann Jacobsen with a baseball bat in order to steal $2,000 Lucas and Jacobsen had received from Jacobsen's parents. Francis failed to take any money because he fled when another person approached. Lucas died of his injuries.

¶ 3 Francis pleaded guilty to first degree felony murder of Lucas, second degree assault of Jacobsen, and attempted first degree robbery of Jacobsen. The trial court sentenced him to 347 months' imprisonment on the felony murdercharge, 14 months on the assault, and 40.5 months on the robbery, all sentences to run concurrently.

¶ 4 Francis filed a personal restraint petition in the Court of Appeals. The Court of Appeals dismissed, asserting double jeopardy violations are waived upon a guilty plea. We granted discretionary review. In re Pers. Restraint of Francis, 166 Wash.2d 1015, 213 P.3d 930 (2009).

ANALYSIS

I. Did Francis waive a double jeopardy challenge when he pleaded guilty?

¶ 5 The State argues Francis waived any double jeopardy challenge whenhe pleaded guilty to all three offenses. However, the mere act of pleading guilty does not waive a double jeopardy challenge. ¹ A guilty plea, by its nature, admits factual guilt-and thus waives any challenge on that ground. State v. Knight, 162 Wash.2d 806, 811, 174 P.3d 1167 (2008). However, a guilty plea does not waive a challenge to " 'the very power of the State to bring the defendant into court to answer the charge brought against him,' " id. (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)), nor does it waive a challenge when the court enters multiple convictions or sentences for the same offense, State v. Hughes, 166 Wash.2d 675, 681 n. 5, 212 P.3d 558 (2009). Here, Francis challenges the latter-the court's ability to enter convictions and sentence him for duplicative charges.² He did not waive that challenge by pleading guilty.

II. Did Francis' convictions violate double jeopardy?

¶ 6 "The proper interpretation and application of the double jeopardy clause is a question of law which we review de novo." Knight, 162 Wash.2d at 810, 174 P.3d 1167 (citing State v. Womac, 160 Wash.2d 643, 649, 160 P.3d 40 (2007)).

a. Did the court violate double jeopardy here when it entered convictions for both attempted first degree robbery and second degree assault?

¶ 7 A court entering multiple convictions for the same offense violates double jeopardy. State v. Freeman, 153 Wash.2d 765, 770-71, 108 P.3d 753 (2005). Because the legislature has the power to define offenses, whether two offenses are separate offenses hinges upon whether the legislature intended them to be separate. See id. at 771-72, 108 P.3d 753.

¶ 8 To determine whether the legislature intended two separate offenses, we first consider any express or implicit representations of legislative intent. Id. But here that is a dead end; the relevant statutes provide no express or implicit representations. See RCW 9A.28.020; RCW 9A.36.021; RCW 9A.56.190, .200.

¶ 9 So we move to the remaining considerations: (a) the Blockburger³ test, (b) the merger doctrine, and (c) whether there was an independent purpose or effect for each offense. Freeman, 153 Wash.2d at 772-73, 108 P.3d 753. These considerations inform but do not compel our outcome; the underlying inquiry is still whether the legislature intended the offenses to be the same. Id. at 771-72, 108 P.3d 753. We make this determination on a case by case basis. Id. at 780, 108 P.3d 753.

¶ 10 But first we must consider the nature of the charged offenses. We view the offenses as they were charged.Id. at 772, 108 P.3d 753; accord In re Pers. Restraint of Orange, 152 Wash.2d 795, 817, 100 P.3d 291 (2004). We do not consider the elements of the offenses in the abstract; that is, we do not consider all the ways in which the State could have charged an element of an offense, but rather we consider how the State actually charged the offense.

¶ 11 Here, Francis' second degree assault conduct was also charged as an element of the first degree robbery charge. The first degree attempted robbery was charged as: "perform[ing] an act which was a substantial step toward the taking of personal property with intent to steal from the person or in the presence of D'Ann Jacobsen, against such person's will by use or threatened use of immediate force, violence, or fear of injury to D'Ann Jacobsen, and in the commission thereof, or in immediate flight therefrom Shawn Dominique Francis inflicted bodily injury upon D'Ann Jacobsen ...." In re Pers. Restraint of Shawn Francis (Pers. Restraint Pet. (PRP), Ex. D at 2-3 (Wash.Ct.App., No. 37489-7)) (emphasis added). The State charged the second degree assault as "unlawfully and feloniously assault[ing] D'Ann Jacobsen with a deadly weapon, to-wit: a baseball bat...." PRP, Ex. D at 2. The State expressly used the second degree assault conduct to elevate Francis' attempted robbery charge to the first degree.

¶ 12 Based upon these facts, the merger doctrine is the most compelling consideration to determine legislative intent.⁴ Francis caused Jacobsen bodily injury. The State charged that conduct as the second degree assault. The State also used that conduct to elevate Francis' attempted robbery to the first degree. "Under the merger doctrine,when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime." Freeman, 153 Wash.2d at 772-73, 108 P.3d 753. We thus presume here that the legislature intended to punish Francis' second degree assault through a greater sentence for the attempted first degree robbery.

¶ 13 This conclusion is further supported by the final Freeman consideration, whether the offenses Francis committed had an independent purpose or effect. Id. "[O]ffenses may in fact be separate when there is a separate injury to the 'the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.' " Id. at 778-79, 108 P.3d 753 (quoting State v. Frohs, 83 Wash.App. 803, 807, 924 P.2d 384 (1996)). Here, the sole purpose of the second degree assault was to facilitate the attempted robbery. The assault was not "separate and distinct" from the attempted robbery; it was incidental to it. Id.

¶ 14 Because, as charged, Francis' conviction for second degree assault merges into his conviction for attempted first degree robbery, the trial court violated double jeopardy when it entered convictions on both offenses. We thus vacate the conviction on the lesser offense-the second degree assault.

¶ 15 The State makes several arguments to circumvent this conclusion by encouraging the court to look to how the State could have charged Francis. However, our inquiry under double jeopardy limits us to how the State actually charged him.

¶ 16 The State argues, because Francis is charged with attempted first degree robbery, it need not prove that he actually caused bodily injury-i.e., the assault conduct, but only that he intended and took a substantial step to cause bodily injury. The State asserts attempted first degree robbery was completed prior to the second degree assault conduct when Francis lay in wait for the victims.

¶ 17 The State's argument is inspired by State v. Beals, 100 Wash.App. 189, 194, 997 P.2d 941 (2000) ("The attempted robbery was complete as soon as Beals formed the requisite intent [for attempted first degree robbery]and took the hammer in hand, and is distinguishable from Beals' act of hitting Perry on the head to complete the assault."), but Beals is inapposite. The issue in Beals was whether there was a substantial step to support the attempted first degree robbery other than the assault conduct. Id. at 193-95, 997 P.2d 941. Here, regardless of the substantial step, the assault conduct is necessary to raise the attempted robbery to the first degree. The State charged Francis with attempted first degree robbery pursuant to RCW 9A.56.200(1)(a)(iii) because he actually inflicted bodily injury on Jacobsen. The assault conduct is the sole basis charged for raising the attempted robbery to the first degree; the apparent legislative intent is to punish both crimes with a greater sentence for the greater offense. Freeman, 153 Wash.2d at 772-73, 108 P.3d 753.⁵

¶ 18 Permitting the State to rewrite on appeal how it charged the offenses would result in Francis' being convicted for a crime to which he did not plead guilty. An attempted robbery where a defendant actually resorted to violence as the robbery progressed is a different set of facts than an attempted robbery where the defendant, upon taking a substantial step such as lying in wait, already intended to cause bodily harm. Francis was given notice of and pleaded guilty to attempted robbery under the first set of facts. The...