State Of Washington v. Amro Mustafa Eltoum-ibrahim ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 78775-6-1
Respondent,
V. DIVISION ONE
AMR° MUSTAFA ELTOUM-IBRAHIM, UNPUBLISHED OPINION
Appellant. FILED: November 18, 2019
LEACH, J. — Amro Eltoum-Ibrahim challenges his guilty plea as not
voluntary. He claims that the court misinformed him about the maximum
sentence he could receive. He also contends that his convictions for violation of
a no-contact order and burglary violate his right against double jeopardy.
Because the court correctly informed Eltoum-Ibrahim of the standard range
sentence and the statutory maximum sentence applicable to him, he fails to
establish that he made a misinformed guilty plea. And Washington's burglary
antimerger statute allows convictions for both burglary and the predicate crime.
So Eltoum-Ibrahim fails to show a double jeopardy violation. We affirm.
No. 78775-6-1/2
BACKGROUND
In mid-March, 2018, Amro Eltoum-Ibrahim pleaded guilty to assault in the
fourth degree against his wife.1 After convicting him, Seattle Municipal Court
imposed an order prohibiting him from threatening, contacting his wife, or
"knowingly" entering, coming, or remaining "within 500 feet" of her residence.
Five days later, on March 31, 2018, police responded to a call and found
Eltoum-Ibrahim inside his wife's apartment. The officers saw the front door
heavily "damage[d] and ajar, having been forced open." They arrested Eltoum-
Ibrahim on suspicion of burglary. His wife was out of the country at the time.
The State charged Eltoum-Ibrahim with residential burglary with domestic
violence and domestic violence misdemeanor violation of a court order. In the
prosecutor's summary, the State described the facts of the offense as follows:
"Eltoum-Ibrahim broke through the entry door to the apartment of his estranged
wife. . . in violation of the post-conviction" no-contact order.
Eltoum-Ibrahim agreed to plead guilty to residential burglary and violation
of the court order. The statement he signed described the standard range for the
burglary as from 12 months and a day to 14 months' incarceration. It identified
any potential enhancements as "N/A." For the "Maximum Time and Fine"
possible, it said 10 years and $20,000. The form also included a paragraph that
read,
1 Eltoum-Ibrahim stipulated to the facts of the State's certification of
probable cause and the prosecutor's summary.
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If I am convicted of any new crimes before sentencing, or if any
additional criminal history is discovered, both the standard
sentence range and the prosecuting attorney's recommendations
may increase or a mandatory sentence of life imprisonment without
possibility of parole may be required by law. Even so, I cannot
change my mind and my plea of guilty to this charge is binding on
me.
At the guilty plea hearing, the court said,
Count I, that's the felony form, at the bottom of page 2, indicates
there that the maximum penalty for this charge is 10 years
imprisonment and a $20,000 fine with a standard range, based on
your criminal history, from 12 months and a day to 14 months in
custody. Count II is a gross misdemeanor, and so carries the
maximum penalty of 364 days in custody and a $5,000 fine.
Eltoum-Ibrahim answered, "Yes, Your Honor." The court asked, "Do you
understand the penalties for each of the charges?" He answered, "Yes, Your
Honor."
The court discussed the sentencing recommendations. It told Eltoum-
Ibrahim he could request that the sentence run concurrently to the sentence for a
municipal court sentence. After describing the recommendations, the court
asked, "Do you understand fully what everybody's position is going to be at the
time of sentencing?" Eltoum-Ibrahim replied, "Yes, Your Honor." Finally, the
court said, "And do you understand that the judge will listen to that
recommendation for each of the charges, but he's under no obligation to follow it,
and in the end, can do whatever they feel is appropriate for each matter?"
Eltoum-Ibrahim replied, "Yes, Your Honor."
He pleaded guilty to both counts. In his statement, he said that on March
31, 2018, he "unlawfully entered and remained in the dwelling of [his wife] with
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No. 78775-6-1 /4
intent to commit a crime therein." The trial court imposed a judgment and
sentence for both counts. Eltoum-Ibrahim appeals.
ANALYSIS
Eltoum-Ibrahim challenges the validity of his guilty plea and asserts that
the judgment and sentence violated double jeopardy. His arguments fail.
Knowing. Intelligent, and Voluntary Plea
Eltoum-Ibrahim contends that his guilty plea was not voluntary because
the court misadvised him about the maximum sentence for the offenses. He
asks this court to allow him to withdraw his plea.
The Fourteenth Amendment's due process clause requires that a
defendant's guilty plea be knowing, voluntary, and intelligent.2 For a plea to be
voluntary, the defendant must be informed of the direct consequences of his
plea.3 CrR 4.2(d) requires that the superior court determine that a plea "is made
voluntarily, competently and with an understanding of the nature of the charge
and the consequences of the plea" before accepting it. And the court must be
"satisfied that there is a factual basis for the plea."4
One direct consequence is the length of the sentence the defendant
faces.5 A defendant facing a "more onerous sentence than anticipated" may
successfully challenge his plea.6 Under State v. Weyrich,7 the trial court must
2 State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006); Boykin v.
Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
3 State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338 (2003).
4 CrR 4.2(d).
5 Mendoza, 157 Wn.2d at 587.
6 Mendoza, 157 Wn.2d at 587.
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No. 78775-6-1/ 5
inform the defendant of the statutory maximum for the charged crime because it
is a direct consequence of a guilty plea.
Eltoum-Ibrahim did not challenge his guilty plea below. Generally, a party
may raise on appeal only those issues raised at the trial court.8 But RAP
2.5(a)(3) allows a party to raise an issue for the first time on appeal if it involves a
manifest error affecting a constitutional right. To assert manifest error, the issue
before this court must affect the party's constitutional rights, and he must
demonstrate that he suffered actual prejudice.9 To show actual prejudice, the
party must make a "'plausible showing . . . that the asserted error had practical
and identifiable consequences in the trial of the case."1° If a defendant
establishes that his guilty plea was involuntary, the constitutional error is manifest
if he also demonstrates that he pleaded guilty because he misunderstood the
sentencing consequences of his plea.11
Eltoum-Ibrahim had no prior felonies and an offender score of two. The
standard range for a class B felony for a person in this category is 12 months
plus one day to 14 months.12 The maximum penalty for a class B felony is 10
years in prison and a $20,000 fine.13 Eltoum-lbrahim's plea statement properly
described the applicable sentencing range and the maximum statutory penalty.
7 163 Wn.2d 554, 557, 182 P.3d 965 (2008).
8 In re Det. of Brown, 154 Wn. App. 116, 121, 225 P.3d 1028(2010).
9 State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).
19 State v. VVWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)
(quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
11 Mendoza, 157 Wn.2d at 589.
12 RCW 9.94A.510, .515.
13 RCW 9A.20.021.
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No. 78775-6-1 /6
So he does not show that the court misinformed him. He entered into the plea
agreement voluntarily.
Eltoum-Ibrahim asserts that the guilty plea "contained multiple inconsistent
and erroneous statements of the possible maximum penalties" primarily because
it provided that no enhancements to the standard range were applicable but also
indicated that a mandatory sentence of life in prison "may be required by law."
This assertion does not help him. The plea agreement and the court, during the
plea hearing, ensured that Eltoum-Ibrahim understood the sentencing range that -
applied to him. And it informed him of the statutory maximum, as required by
Weyrich.
The paragraph in his plea agreement that refers to a potential mandatory
sentence of life is not part of the sentencing information. It states that the life
sentence might apply if the circumstances changed and he was convicted of new
crimes or the court learned of additional criminal history before sentencing. This
paragraph notified him that a change in circumstances between his plea and
sentencing could change the sentence the court could impose. It did not
misinform him of the applicable sentence.
Eltoum-Ibrahim asserts that this court should view State v. Knotek14 as
controlling. But Knotek does not apply for two reasons. First, Division Two
decided it before the Washington Supreme Court decided Wevrich, holding that
courts must notify a defendant of both the applicable sentencing maximum and
14 136 Wn. App. 412, 425, 149 P.3d 676 (2006).
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No. 78775-6-1 /7
the statutory maximum prior to accepting a guilty plea.15 Second, in Knotek, the
court was considering the impact of a United States Supreme Court's decision
issued after the defendant's guilty plea and before sentencing.18 Here, nothing
intervened to change the accuracy of the sentencing information provided to
Eltoum-Ibrahim. So Knotek does not help him.
Eltoum-lbrahim also asserts that State v. Buckman17 requires this court to
allow him to withdraw his plea. Because Buckman was 17 at the time of the
crime, the court determined he should have been informed about the statutory
maximum that applied to minors, not the one that applied to adults.18 But, here,
the court correctly identified a maximum sentence that applied to Eltoum-Ibrahim
as an adult.
Double Jeopardy
Eltoum-Ibrahim asserts that convictions for both residential burglary and
violation of the no-contact order violate his right against double jeopardy.
The United States Constitution and the Washington Constitution protect a
defendant from double jeopardy.18 They prohibit the State from punishing an
15 Wevrich, 163 Wn.2d at 557. Eltoum-Ibrahim did not discuss or cite to
Wevrich.
16 Knotek, 136 Wn. App. at 425 (discussing Blakely v. Washington, 542
U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)).
17 190 Wn.2d 51, 59-60, 409 P.3d 193(2018).
18 Buckman, 190 Wn.2d at 55-56, 59-60.
19 U.S. CONST. amend. V; WASH. CONST. art. I, § 9; In re Pers. Restraint of
Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
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No. 78775-6-1/ 8
offender multiple times for the same offense.2° Claims of double jeopardy are
questions of law that we review de novo.21
When a defendant's act supports convictions under two criminal statutes,
a court considering a double jeopardy challenge "must determine whether, in
light of legislative intent, the charged crimes constitute the same offense."22 In
this analysis, Washington courts first ask whether, "in light of legislative intent,
the charged crimes constitute the same offense."23 Second, if legislative intent is
not clear, a court may apply the same-elements test described in Blockburger v.
United States.24 Third, the court may look to the merger doctrine.25 The merger
doctrine
only applies where the Legislature has clearly indicated that in
order to prove a particular degree of crime[,] the State must prove
not only that the defendant committed that crime but that the crime
was accompanied by an act which is defined as a crime elsewhere
in the criminal statutes.126]
The elements of residential burglary include the "intent to commit a crime
against a person or property therein" and "ent[ry] or remain[ing] unlawfully in a
dwelling other than a vehicle."27 An antimerger statute applies to burglary. This
statute reflects the legislature's expression of its intent that the predicate crime
20 State v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753(2005).
21 Freeman, 153 Wn.2d at 770.
22 Orange, 152 Wn.2d at 815.
23 Freeman, 153 Wn.2d at 770 (quoting Orange, 152 Wn.2d at 815).
24 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Freeman, 153
Wn.2d at 772.
25 Freeman, 153 Wn.2d at 772-73.
26 State v. Frohs, 83 Wn. App. 803, 806, 924 P.2d 384 (1996).
27 RCW 9A.52.025(1).
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No. 78775-6-1 / 9
and the burglary do not merge.28 The State may prove the predicate crime
against a person required by the residential burglary statute by establishing an
offender's violation of a protective order.29
Eltoum-Ibrahim pleaded guilty to two crimes as part of his plea agreement
with the State. He admitted that he entered his wife's apartment intending to
commit a crime. He also admitted that he violated a protective order when he did
this. Because the legislature clearly intended burglary not to merge with the
underlying criminal conduct, the trial court's judgment and sentence do not
violate double jeopardy.
Eltoum-Ibrahim asserts that the antimerger statute does not apply
because the record does not establish that he entered the apartment with intent
to commit a separate crime. So, he claims, while his entry into the home violated
the prohibition from entering his wife's residence and satisfies the "'unlawful
entry' component of residential burglary, it did not constitute the separate intent
to commit a violation of the order inside her home." He appears to be
challenging the evidence supporting his guilty plea. This argument does not help
his double jeopardy claim.
He relies on State v. Stinton,3° a case that did not involve a double
jeopardy analysis. In Stinton, Division Two determined that a violation of a no-
28 "Every person who, in the commission of a burglary shall commit any
other crime, may be punished therefor as well as for the burglary, and may be
prosecuted for each crime separately." RCW 9A.52.050; see State v. Hoyt, 29
Wn. App. 372, 378, 628 P.2d 515 (1981).
28 State v. Spencer, 128 Wn. App. 132, 140-41, 114 P.3d 1222(2005).
30 121 Wn. App. 569, 89 P.3d 717(2004).
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No. 78775-6-1 /10
contact order could also serve as the predicate offense for burglary.31 The court
in Stinton noted that the defendant violated the prohibition against entry and the
prohibition against harassment, two separate provisions of the no-contact
order.32 The court did not hold that the State must establish that the defendant
violated two provisions of a no-contact order in order to avoid offending double
jeopardy with convictions for residential burglary and a violation of a no-contact
order.
Also, Eltoum-Ibrahim appears to attack the sufficiency of the evidence of
residential burglary supporting the court's acceptance of his plea. This argument
does not establish that the two convictions violated double jeopardy. Eltoum-
Ibrahim did not challenge the evidentiary support for the court's acceptance of
the guilty plea below, and he does not do so explicitly here. He pleaded guilty to
intending to commit a crime and to unlawful entry. He violated the no-contact
order the moment he entered the 500-foot radius of his wife's apartment. He
also broke in, damaged her door, and remained. So even if he intends to
challenge the factual basis of his plea, his claim fails.
31 Stinton, 121 Wn. App. at 574-75.
32 Stinton, 121 Wn. App. at 575.
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CONCLUSION
We affirm. The convictions for residential burglary and violation of a no-
contact order do not violate double jeopardy.
WE CONCUR:
*
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