State Of Washington v. Andre Edward Stewart

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ,
No. 69313-1-1
Respondent,
DIVISION ONE _ coo
v.
UNPUBLISHED OPINION^ rn<=>
ANDRE EDWARD STEWART,
CO
Appellant. ) FILED: April 28,2014
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Appelwick, J. — Stewart appeals his conviction for assault in the third deTjtee.v
He argues that his guilty plea was not voluntary, because it did not include the element
of criminal negligence. We affirm.
FACTS
On August 26, 2007, Andre Stewart got into a dispute with his then girlfriend,
Christina Evans. The next day Evans called the police to help her get her belongings
out of the apartment. When police arrived to assist, she reported that the previous day
Stewart had grabbed her and thrown her to the ground. She also reported that she was
not injured. The officer took statements, but made no arrests. A week later, Evans
called the police to report that she had been suffering pain since Stewart had thrown her
to the ground. She had returned to the hospital where it was discovered via x-rays that
she had a broken rib. However, according to the affidavit of probable cause, medical
records indicated that the there was no evidence of a fracture or a break in the x-rays.
The State charged Stewart with assault in the third degree - domestic violence
under RCW 9A.36.031(1)(f). The statute provides that a person is guilty of assault in
the third degree if, with criminal negligence, he causes bodily harm accompanied by
No. 69313-1-1/2
substantial pain that extends for a period sufficient to cause considerable suffering.
RCW9A.36.031(1)(f).
Stewart pleaded guilty as charged. Stewart was sentenced on May 12, 2008.
DISCUSSION
Stewart argues that his guilty plea was not voluntary, because it did not include
all elements of the crime charged.1 Specifically, he asserts that his plea did not
demonstrate understanding that, to be guilty of the crime, he must have acted with
criminal negligence. He further argues that the court erred in determining that a factual
basis existed for his plea.
The Constitution requires that a defendant entering a voluntary guilty plea be
aware (1) that he is waiving his rights to remain silent, to confront his accusers, and to a
jury trial; (2) of the essential elements of the crime with which he is charged; and (3) of
the direct consequences of pleading guilty. In re Pers. Restraint of Hilvard. 39 Wash. App.
723, 727, 695 P.2d 596 (1985). Under CrR 4.2(d), a trial court must be satisfied that
there is a factual basis for a defendant's guilty plea. This is a procedural requirement
that is not constitutionally mandated. State v. Branch, 129 Wash. 2d 635, 642, 919 P.2d
1228 (1996). The trial court is not limited to the defendant's statement, but may look to
any reliable source to determine that there is a factual basis for a guilty plea. In re Pers.
Restraint of Fuamaila, 131 Wash. App. 908, 924, 131 P.3d 318 (2006).
Stewart's statement in his own words does not alone indicate his awareness of
criminal negligence as an element of the crime. But, his plea also reads that "I have
1 The State asks that we refuse to address this issue, because Stewart raises it
for the first time on appeal. RAP 2.5(a) grants us discretion to refuse to review any
claim of error not raised in the trial court. We decline to do so here.
No. 69313-1-1/3
been informed and fully understand that... I am charged with the crime(s) of Assault
Third Degree [sic]. The elements of this crime(s) are set forth in the information . . .
which is incorporated by reference and which I have reviewed with my lawyer." (Some
capitalization omitted.) The information includes all elements of the crime, including
criminal negligence. Stewart's plea was not facially invalid.
Furthermore, during the plea hearing, the court asked Stewart, "You're going
forward with this plea today to the charge of Assault in the Third Degree. Your attorney
has indicated you do understand the elements of the offense. Is that correct?" Stewart
replied, "Yes." The court also read Stewart's statement to him and asked if it was true,
to which Stewart replied, "Yeah." His statement in his own words read, "That on 26
August 2007, in King County Washington, did [sic] cause bodily harm accompanied by
substantial pain that did extend for a period sufficient to cause considerable suffering to
Christina Evans." The court properly conducted a colloquy and determined that there
was a factual basis for Stewart's plea.
We affirm.
WE CONCUR: