[No. 60642-5-I. Division One. April 13, 2009.]
January 6, 2009, Argued
Oliver R. Davis (of Washington Appellate Project), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Patrick H. Hinds, Deputy, for respondent.
Authored by Anne Ellington.
Concurring: Ronald Cox, Stephen J Dwyer. ¶1 ELLINGTON, J. -- An indivisible plea of guilty does not prevent a double jeopardy challenge based on the same offense theory where the violation is clear from the record and was not otherwise waived. BACKGROUND ¶2 Martin, D.S., and A.A. all rented rooms in the same boarding house. On September 11, 2006, D.S. and Martin had an argument. D.S. went into her room to use the telephone. Martin broke into the room yelling, took the phone from her, and hung it up. D.S. was able to get to the phone and called 911. Martin again took the phone and threw it. He then pinned D.S.'s arms above her head, untied her pants, and tried to pull them down. ¶3 Hearing D.S. screaming, Martin's brother entered the room and pulled Martin away from D.S. Martin told his brother, "Let's do her. Let's do her now and get it over with." ¶4 Martin eventually left the residence. D.S. called A.A. and asked her to come home. After A.A. arrived, Martin returned. A.A. confronted Martin and told him to leave. Martin told A.A., "[C]all the cops again, bitch, and you'll die." ¶5 Martin was charged with one count of attempted second degree rape, one count of attempted indecent liberties, and two counts of felony harassment. Pursuant to negotiations, the State agreed to amend the charges to one count of second degree assault and two counts of felony harassment, for which the State would recommend concurrent sentences, and one misdemeanor count, attempted rape in the third degree, which the State would recommend be suspended subject to, among other conditions, a sexual deviancy evaluation, compliance with all recommended treatment, and registration as a sex offender. Martin entered a plea to the amended charges, and the court imposed sentence consistent with the State's recommendation. ¶6 Martin appeals. He argues that his convictions for second degree assault and attempted third degree rape violate prohibitions against double jeopardy because they are the same offense, and that the sentence for attempted third degree rape must be vacated. DISCUSSION [1] ¶7 The proper interpretation and application of the double jeopardy clause is a question of law. Review is de novo. [2, 3] ¶8 In a single proceeding, the State may bring multiple charges arising from the same criminal conduct. Indivisible Plea [4, 5] ¶9 The first question is whether Martin's double jeopardy challenge survives his plea. A guilty plea waives even constitutional violations occurring before the plea, unless the violation involves the government's power to prosecute. ¶10 The State's argument principally derives from State v. Turley ¶11 In Shale, which was decided in May 2007, eight justices considered a collateral attack on double jeopardy grounds to certain convictions entered pursuant to an indivisible plea agreement. In the lead opinion, four justices relied upon Turley and held that a double jeopardy challenge to only part of the indivisible bargain would not lie. ¶12 Martin responds that the indivisibility of the plea is no obstacle after State v. Knight, ¶13 In Knight, the defendant negotiated a plea to an amended information charging conspiracy to commit second degree robbery, conspiracy to commit first degree burglary, and murder in the second degree. The agreement required Knight to testify truthfully against her co-conspirators and forfeit her car. As here, nothing in the agreement addressed waiver of double jeopardy claims. The trial court accepted the pleas and imposed sentence. ¶14 Knight appealed, claiming the two conspiracy counts constituted multiple convictions for a single "unit of prosecution." The Court of Appeals agreed and vacated the conviction for conspiracy to commit first degree burglary. ¶15 The Supreme Court granted review "to determine if a single conviction can be vacated for a double jeopardy violation without rejecting an indivisible plea agreement." ¶16 Shale's lead opinion had treated the double jeopardy claim as an impermissible challenge to part of an indivisible plea agreement. Without mentioning Shale, Knight rejects that premise out of hand. Shale's two opinions, each signed by four justices, announced no clear rule, whereas Knight was decided by a unanimous court. The lead opinion in Shale has been overruled sub silentio. ¶17 In State v. Amos, ¶18 We are unable to agree. The State may bring multiple charges arising from the same criminal conduct, ¶19 Further, the Knight court's references to the power of government to prosecute are ringing echoes from celebrated cases--cases which did not explore whether there is a difference, for double jeopardy purposes, between the power to charge and the right to obtain a conviction. ¶20 Like Knight, Martin does not seek to withdraw his plea on the relevant count, and whether the plea is indivisible under Turley is therefore not pertinent. ¶21 The State seeks to distinguish Knight on its facts, focusing on the discussion of fulfillment of the plea bargain. Martin's plea agreement allowed the State to recommend sex offender registration and treatment conditions arguably not available absent conviction for a sex offense. ¶22 But the court held that Knight met her obligations when she entered her plea. ¶23 We are therefore unable to see how Martin's plea agreement leaves him with unfulfilled obligations preventing a double jeopardy challenge. He entered his plea. Under Knight, no more is required. ¶24 We conclude that Knight controls our analysis, and Martin may bring his double jeopardy challenge. Same Offense ¶25 We now return to Martin's argument that second degree assault and attempted third degree rape constitute the same offense. [6] ¶26 The Washington Supreme Court set forth a three part test for determining whether the legislature intended multiple punishments arising from the same criminal conduct. Courts first consider express or implicit legislative intent based on the criminal statutes involved. ¶27 As charged, second degree assault requires proof of intentional assault and the intent to commit a felony (in this case, rape). [7] ¶28 The State compares the elements of each crime and argues the two offenses are not the same in law. But where one crime is an anticipatory offense and another crime is both charged separately and used as the basis for the attempt charge, an abstract comparison of elements is not enough. As the court observed in In re Personal Restraint of Orange: The Valentine court's reluctance to look at the facts used to prove the statutory elements exposes a misconception about the Blockburger test. That the test has been alternatively called the "same elements" and the "same evidence" test underscores that the Blockburger test requires the court to determine "whether each provision requires proof of a fact which the other does not." Unless the abstract term "substantial step" is given a factual definition, there is simply no way to assess whether attempted murder requires proof of a fact not required in proving the assault. The Valentine court's belief that the "substantial step" element had to remain a generic term for purposes of the "same elements" test ignores the reality that the term "substantial step" is a placeholder in the attempt statute, having no meaning with respect to any particular crime and acquiring meaning only from the facts of each case. ¶29 In Orange, the two charges were based on the same shot directed at the same victim, and the evidence required to support the conviction for first degree attempted murder was sufficient to convict Orange of first degree assault. [8] ¶30 Here, the crimes of second degree assault and attempted third degree rape (by taking the substantial step of assaulting D.S. with intent to rape her) are the same in fact and law. ¶31 The two charges were predicated on the same conduct: Martin's assault with intent to rape D.S. [9] ¶32 Martin's convictions for second degree assault and attempted third degree rape violate the constitutional prohibition against double jeopardy. The remedy is vacation of the lesser offense (here, attempted third degree rape). Other Issues ¶33 Finally, Martin argues that the trial court abused its discretion by denying his motion to appoint substitute counsel. At his sentencing hearing, Martin was scheduled for sentencing both in this matter and in an unrelated case involving a gun charge. Martin's attorneys in this case informed the court that he desired to withdraw his plea. The court suggested it would proceed to sentencing on the gun charge and set this matter over. When the State interjected that misgivings did not constitute a basis for plea withdrawal, Martin's attorney stated: I guess my concern is that, if there is more to the reason for Mr. Martin's desire to withdraw his plea, it seems that part of his concerns may stem from the things that [prior counsel] and I did. And it seems more appropriate for a different attorney to explore with Mr. Martin the potential grounds that he may have for wanting to withdraw his plea. . . . But, again, if the court is going to entertain, I guess, receiving more information about this, it seems to me appropriate for him to receive new counsel on my cause number so that they can explore better, I suppose, or more thoroughly, the other grounds that he may have. I would also ask the Court to do sentencing on both of these matters at the same time, since that would allow for the presumption that they would be run concurrent. [10] ¶34 The court asked Martin to decide what he wanted to do. After conferring with Martin, his attorney informed the court that Martin wanted to proceed with sentencing, which the court did. Martin never pursued withdrawal of his plea or a change of counsel. The record thus reflects that Martin abandoned his objections. Further, the court did not abuse its discretion in handling the situation. ¶35 We remand for vacation of the conviction for attempted rape in the third degree and otherwise affirm. DWYER, A.C.J., and COX, J., concur.