33. Appellant. FILED: June 13, 2016 IX •>> O 5rr~ V? —
Leach, J. — Hokeshina Lee Tolbert appeals his conviction of murder in tfi§ ^^
second degree after the trial court denied his request to withdraw his guilty plea.
Tolbert challenges the voluntariness of his plea. He claims that he did not have
adequate knowledge about how his actions related to accomplice liability. He
also claims that the trial court should have ordered a competency hearing.
Finally, he argues that the trial court should not have accepted his guilty plea
because sufficient facts did not support that a jury could find him guilty of the
crime charged. Because the record shows that he entered into his guilty plea
voluntarily, knowingly, and intelligently, because Tolbert failed to provide
substantial evidence of incompetency, and because sufficient facts support the
trial court's acceptance of his guilty plea based on his accomplice liability, we
affirm. No. 75035-6-1/2
Background
On May 10, 2008, Michael Mee was involved in a fight at a barbeque at a
residence in Tacoma. Mee left the scene in a car with several people and drove
to another residence.
When Mee arrived, he went into the house and came out with several
people including Tolbert, who was carrying a rifle. Tolbert gave the rifle to Mee.
Mee got into in the front passenger seat of a vehicle parked in front of the
residence. Tolbert got into the car Mee had arrived in. Both vehicles went back
to the barbeque. Mee fired two rounds from the rifle at people standing in the
yard of the residence. One struck Tracy Steele in the torso, killing him.
Tolbert told police that "they" had given Mee the rifle, that he knew the rifle
would be used to shoot someone, that he followed Mee to the shooting, and that
he retrieved the rifle from Mee after the shooting.
The State charged Tolbert, then 16 years old, as an adult,1 with one count
of first degree murder under accomplice liability and one count of unlawful
possession of a firearm in the second degree. On the order for omnibus hearing,
the box stating "Defendant needs a competency examination" is checked. The
trial court discussed this with Tolbert's counsel at the omnibus hearing. Counsel
stated that he did not know why the box was checked. Tolbert entered into a
plea agreement for one count of murder in the second degree in exchange for
testifying against others involved in the crime. Tolbert pleaded guilty to the
See RCW 13.04.030(1 )(e)(v)(A). No. 75035-6-1 / 3
amended information on January 29, 2009. Paragraph 11 of his plea agreement
read,
On May 10, 2008 in Pierce Co. Washington Michael Mee came to my cousin's house and asked for a gun. I went and got a 30-30 rifle from the garage. Michael Mee took the gun and went to the residence where Tracy Steele was at. I was in a car following another car Michael Mee was riding in. I watched Michael Mee fire two shots at the house. Tracy Steele was hit by the bullets and died. Jesus Cota Ancheta was driving the car Michael Mee fired the shots from. I knew Michael Mee was going to use the gun to shoot someone.
During the plea hearing on January 28, 2009, the trial court conducted a
colloquy with Tolbert. Among other things, the court described the
consequences of pleading guilty. Tolbert told the trial court that he had reviewed
the statement on plea of guilty and the plea agreement with his attorney and that
he understood the consequences listed in it, including his waiver of his rights to
jury trial and to testify in his own defense. The trial court informed him of the
maximum sentence possible for conviction of second degree murder. Tolbert
acknowledged the terms of his plea agreement. The trial court specifically
questioned Tolbert about paragraph 11 of his plea statement, and Tolbert
confirmed the accuracy of his statement about the events constituting the crime.
Tolbert agreed that the trial court had no reason to hesitate to accept his plea.
On March 18, 2009, Tolbert, acting pro se, filed a declaration stating, "I've
been trying to get ahold of my lawyer to tell him I want to withdraw my plea
bargain but he don't return or answer my calls." He wrote that his lawyer had
misled him about the number of years he would be sentenced, that his lawyer No. 75035-6-1/4
forced him to take the deal by not communicating with him, and that he was
coerced into making statements on July 1, 2008. He also requested a new
attorney in a declaration filed on October 7, 2009, saying that his attorney had
failed to schedule him an incompetency hearing. The trial court did not act on
these declarations.
At sentencing on March 12, 2010, the State reduced its sentencing
recommendation from 220 months of incarceration to 150 months because
Tolbert fulfilled his plea agreement by testifying in the other trials. Tolbert's
mother testified to some of the difficulties Tolbert experienced, including attention
deficit hyperactivity disorder and posttraumatic stress disorder. The trial court
recognized that Tolbert's "credible and forthright" testimony helped the State
convict Mee. The trial court imposed a 150-month sentence. Tolbert did not ask
to withdraw his plea during the hearing.
Tolbert filed a notice of appeal on November 10, 2014. On November 12,
Tolbert filed a motion to extend time to file notice of appeal. On February 23,
2015, Division Two of this court granted the motion because "the Plea
Agreement and Statement on Plea of Guilty did not waive all of Tolbert's appeal
rights and because the trial court did not advise him of any remaining appeal
rights during the sentencing hearing." No. 75035-6-1 / 5
Analysis
Tolbert asks this court to allow him to withdraw his guilty plea. We review
a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion.2
CrR 4.2(f) requires that a court "allow a defendant to withdraw the
defendant's plea of guilty whenever it appears that the withdrawal is necessary to
correct a manifest injustice." A manifest injustice occurs when a defendant's plea
was involuntary.3 "It is reversible error for a trial court to accept a guilty plea
without an affirmative showing in the record that the plea was made intelligently
and voluntarily."4
Tolbert argues that his guilty plea is invalid because it was not voluntary,
knowing, or intelligent. Primarily, Tolbert claims that his plea was not knowing.
Due process requires that the defendant pleading guilty understand the elements
of the crime charged and how those elements relate to the facts alleged.5 To
meet the minimum requirements for constitutional due process, a "'defendant
would need to be aware of the acts and the requisite state of mind in which they
must be performed to constitute a crime.'"6
2 State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003). 3 State v.Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183, affd, 130 Wn.2d 464, 925P.2d 183(1996). 4 State v. King, 130 Wn.2d 517, 530, 925 P.2d 606 (1996). 5 In re Pers. Restraint of Hews, 99 Wn.2d 80, 87, 660 P.2d 263 (1983) (Hews I) (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L Ed. 2d 418 (1969)). 6 State v. Osborne, 102 Wn.2d 87, 93, 684 P.2d 683 (1984) (quoting In re Pers. Restraint of Keene, 95 Wn.2d 203, 207, 622 P.2d 360 (1980)). No. 75035-6-1 / 6
Tolbert contends that he did not understand the nature of the charge
against him because the statement of defendant on plea of guilty did not explain
the legal meaning of accomplice, nor did it state that Tolbert knew at the time he
got the gun that Mee would use it to kill Steele. He argues that his statement
does not make clear what he heard Mee say, whom he got the gun for, or when
he first learned that Mee planned to use the gun to shoot someone. He argues
that because the timing of this knowledge matters to his accomplice liability,7
failure to communicate this to him constituted error. Tolbert also argues that the
circumstances of his age and background should weigh against the validity of the
plea.
To establish accomplice liability, the State had to prove that Tolbert aided
or agreed to aid a person in planning or committing a crime with knowledge that it
would promote or facilitate the commission of the crime.8 The State had to prove
Tolbert's knowledge of the specific crime charged rather than knowledge of a
different crime or generalized knowledge of criminal activity.9
Here, the trial court confirmed at Tolbert's plea hearing that he understood
his "role in this was providing the rifle that became the murder weapon." Tolbert
7 See Rosemond v. United States, U.S. , 134 S. Ct. 1240, 1251, 188 L. Ed. 2d 248 (2014) (A defendant charged with aiding and abetting an armed drug sale who learns of a gun only after he may reasonably walk away does not have the requisite intent to bring about an armed drug sale.). 8 RCW 9A.08.020(3)(a)(ii) provides, "A person is an accomplice of another person in the commission of a crime if: (a) With knowledge that it will promote or facilitate the commission of the crime, he or she . . . (ii) Aids or agrees to aid such other person in planning or committing it." 9 State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000).
-6- No. 75035-6-1 / 7
signed the plea agreement with the State outlining his obligations and the
benefits he received because he pleaded guilty. He signed the statement on
plea of guilty, which also incorporated a declaration for a determination on
probable cause, establishing the factual basis for his plea. That document
showed that Tolbert had received a copy of the amended information reflecting
the reduction in charges. The amended information included the prosecutor's
statement, "The defendant is an accomplice to the murder. The defendant
provided the firearm used to kill the victim (Tracy Steele) with knowledge that the
firearm would be used in a drive-by scenario." When the State provides the
defendant with an information notifying him of the nature of the crime, this
creates a presumption that the defendant entered into the plea knowingly.10 And
Tolbert's attorney stated at the hearing that he had reviewed the plea agreement
and the statement on plea of guilty with Tolbert. The record shows that Tolbert
was aware of the charges against him, how his actions related to those charges,
and the benefits he gained by taking the plea agreement. We conclude Tolbert
knowingly pleaded guilty.
Tolbert also argues that "youth and lack of education make it even more
likely that he did not understand the legal requirements as they related to the
facts." He faults the trial court for not engaging in a more specific colloquy with
him to ensure his understanding of the rights he relinquished by pleading guilty.
10 In re Pers. Restraint of Hews, 108 Wn.2d 579, 595-96, 741 P.2d 983 (1987) (Hews II).
-7- No. 75035-6-1 / 8
But he cites no authority requiring this court to give weight to these factors in this
context without demonstrating some further incompetency. We thus decline to
do so.
We also conclude that Tolbert voluntarily and intelligently entered into his
guilty plea. A plea is voluntary when a defendant understands the "nature and
extent of the constitutional protections waived by pleading guilty."11 A strong
presumption exists that a plea is voluntary when a defendant reads, understands,
and signs a plea statement.12 And where a trial court inquires about a specific
matter of the plea statement, the presumption that the plea is voluntary is "well
nigh irrefutable."13 Here, the trial court engaged in a colloquy with Tolbert at his
plea hearing and confirmed that he was aware that by pleading guilty he would
give up his right to trial, to question witnesses, to a presumption of innocence,
and to appeal a resulting conviction. The record supports that Tolbert was aware
of the rights he relinquished and that the guilty plea was voluntary.
And a guilty plea is intelligent where the defendant is informed of all of the
direct consequences of pleading guilty.14 The plea agreement and statement on
plea of guilty both outlined the sentencing consequences of Tolbert's plea and
stated that his sentencing range would be from 123 to 220 months.15 Tolbert's
attorney stated at the hearing that Tolbert "understands the State is going to, in
11 Hews I, 99Wn.2dat87. 12 State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). 13 State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982). 14 In re Pers. Restraint of Isadore, 151 Wn.2d 294, 300, 88 P.3d 390 (2004). 15 See Isadore, 151 Wn.2d at 297-98.
-8- No. 75035-6-1 / 9
exchange for a reduction to Murder 2, recommend 220 months," that he is
pleading to a strike offense, and that if Tolbert breaks the agreement then he will
be charged with first degree murder. The trial court confirmed that Tolbert
understood the maximum penalty for the crime, the standard sentencing range,
community custody consequences, and that a strike offense means that if he
were convicted of three of these kinds of offenses he would be subject to life in
prison without parole. The record supports that Tolbert's guilty plea was
intelligent.
Because the record affirmatively shows that Tolbert made a voluntary,
knowing, and intelligent plea, the trial court did not err in concluding the same
and accepting his guilty plea.
Tolbert next argues that his plea is invalid because the trial court accepted
it before resolving the issue of his competency. He argues the order on omnibus
hearing, with a box checked that the "[defendant needs a competency hearing,"
required the court to inquire into his competency, and it erred when it failed to do
so at his plea hearing. He also claims that the trial court should have considered
Tolbert's competency after he entered into a guilty plea when his mother told the
court about Tolbert's struggles with mental health issues. He also claims that his
two pro se declarations called his competency into question.
A defendant must be competent in order to enter into a valid guilty plea.16
In reviewing Tolbert's competency hearing challenge, we look to see if "'the plea
16 RCW 10.77.050. No. 75035-6-1/10
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.'"17 A trial court has broad discretion to judge the
mental competency of a defendant to plead guilty.18 A trial court may consider
several factors to determine if it needs to inquire formally into a defendant's
competency, including the "'defendant's appearance, demeanor, conduct,
personal and family history, past behavior, medical and psychiatric reports and
the statements of counsel.'"19
A defendant must present substantial evidence to raise adequately a
legitimate question of competency, requiring the court to order a competency
hearing.20 When a defendant fails to do this, a trial court need not hold a
competency hearing.21 The State argues that Tolbert never raised a legitimate
question of his competence because he did not produce substantial evidence to
raise a legitimate question of incompetency. We agree.
First, during the omnibus hearing, the trial court addressed the checked
box on the omnibus hearing form and determined that no request had been
made.
[DEFENSE COUNSEL]: Your honor, in the Omnibus Order that's been prepared by [another defense counsel], it indicates that
17 Osborne, 102 Wn.2d at 98 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)). 18 Osborne, 102 Wn.2d at 98 (quoting State v. Loux, 24 Wn. App. 545, 548, 604P.2d 177(1979)). 19 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610 (2001) (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). 20 State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010). 21 DeClue, 157 Wn. App. at 793.
-10- No. 75035-6-1 /11
there may be a competency examination, and I don't know what he means by that.
THE COURT: Well, that's kind of an unusual situation to have floating around, I would think. Do you have knowledge about this Mr. [Prosecutor]?
[PROSECUTOR]: No, sir.
THE COURT: Okay. I am going to assume that [another defense attorney] is just covering his bases. At the moment, you have no indication that there's a request for a competency evaluation at this point?
[DEFENSE COUNSEL]: No, I do not.
At the hearing, Tolbert's counsel thus expressly withdrew any request otherwise
indicated by the checked box. Tolbert did not raise the issue of competency at
any other point before he entered into his plea.
Nor did Tolbert present substantial evidence of his incompetency after he
pleaded guilty. Neither his declaration claiming he had been coerced into making
the plea nor his request for new counsel stating that he had asked counsel to
schedule him a competency hearing requires that the trial court find
incompetence when the trial court had also been able to observe his competent
testimony elsewhere.
We conclude that the trial court acted well within its discretion to
determine that Tolbert was competent to enter into a voluntary, knowing, and
intelligent plea.
Finally, Tolbert argues that an insufficient factual basis existed for the trial
court to accept his guilty plea because Tolbert pleaded to second degree murder
•11- No. 75035-6-1/12
requiring specific intent when the State charged Mee, the principal actor, with a
general intent crime of first degree murder by extreme indifference.
To accept a guilty plea there must be evidence sufficient for a jury to find
guilt, but the trial court does not need to conclude beyond a reasonable doubt
that the defendant is guilty.22 Thus, in this case, for the trial court to accept the
plea, the record had to demonstrate sufficient evidence to show that a jury could
find that Tolbert had knowledge that he was aiding in the commission of the
crime for which Mee was charged.23
Tolbert argues that a jury could not find him guilty of accomplice liability
because that would require it to find that he had knowledge of Mee's crime.
Tolbert argues that because the State charged Mee with first degree murder by
extreme indifference, a crime that does not require proof of "specific intent to
murder Mr. Steele, it is logically impossible for Tolbert to have had the knowledge
that producing the gun from the garage would facilitate that murder, as required
for accomplice liability."24 Tolbert cites State v. Dunbar25 in support of this
argument. There, the Washington Supreme Court held that because the crime of
attempt requires that a defendant act with the intent to accomplish a specific
criminal result, "in order to serve as a basis for the crime of attempt, a crime
22 State v. Bao Sheng Zhao, 157 Wn.2d 188, 198, 137 P.3d 835 (2006). 23 See RCW 9A.08.020(3)(a)(ii); see also Cronin, 142 Wn.2d at 578-79. 24 RCW 9A.32.030(1)(b) provides, "(1) A person is guilty of murder in the first degree when: ...(b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person." 25 117 Wn.2d 587, 817 P.2d 1360 (1991).
-12- No. 75035-6-1/13
defined by a particular result must include the intent to accomplish that criminal
result as an element."26
But in State v. Guzman,27 Division Three of this court distinguished the
intent required for attempted murder in Dunbar from that required for accomplice
liability. The Guzman court concluded that facts need only show that an
accomplice to first degree murder by extreme indifference knew that his actions,
along with those of the principal, were extremely dangerous and yet he was
indifferent to the consequences.28 Thus, the State need only prove that Mee "'(1)
acted with extreme indifference, an aggravated form of recklessness, which (2)
created a grave risk ofdeath to others, and (3) caused the death ofa person.'"29
Tolbert attempts to distinguish Guzman, arguing that here Tolbert pleaded
guilty to the different, specific intent crime of second degree murder rather than
to first degree murder by extreme indifference. But his argument asks this court
to overlook that the State originally charged Tolbert with accomplice liability to
Mee's crime of first degree murder by extreme indifference. Because the factual
basis requirement is intended to ensure voluntariness, where a factual basis
exists for an original charge, "a defendant can plead guilty to amended charges
for which there is no factual basis, but onlv if the record establishes that the
26 Dunbar, 117 Wn.2d at 589-90. 27 98 Wn. App. 638, 645-46, 990 P.2d 464 (1999). 28 Guzman, 98 Wn. App. at 646. 29 State v. Henderson, 180 Wn. App. 138, 145, 321 P.3d 298 (2014) (quoting State v. Yarbrough, 151 Wn. App. 66, 82, 210 P.3d 1029 (2009)), affd, 182 Wn.2d 734, 344 P.3d 1207 (2015).
-13- No. 75035-6-1/14
defendant did so knowingly and voluntarily."30 Thus, under Guzman, acceptance
of Tolbert's guilty plea required the trial court to conclude by sufficient evidence
that a jury could find that Tolbert knew that his actions and those of Mee were
extremely dangerous but that Tolbert was indifferent to the consequences.
Here, Tolbert admitted that he handed Mee the rifle, knowing Mee would
use it to shoot someone. He accompanied Mee to the barbeque where he
witnessed Mee shoot into a crowd and hit Steele with a bullet. Tolbert then left
with Mee and accepted the gun back after the event. Because a jury could rely
on this evidence to find that Tolbert had knowledge that when he provided Mee
the gun that Mee would use it to shoot another person, the trial court did not err
when it entered judgment and sentence on Tolbert's guilty plea.
Conclusion
The record establishes that Tolbert entered into his guilty plea voluntarily,
knowingly, and intelligently. The trial court did not abuse its discretion when it
found that Tolbert was competent to plead guilty. Finally, the record includes
sufficient facts to show that a jury could have convicted Tolbert of accomplice
30 Bao Sheng Zhao, 157 Wn.2d at 200.
-14- No. 75035-6-1/15
liability for murder. Thus, the trial court did not err when it accepted Tolbert's
guilty plea, and no manifest injustice warrants its withdrawal. We affirm.
WE CONCUR:
-t^lq;;/u:t ^y.T-
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