STATE v. CYRIL DELANTO WALROND

UNPUBLISHED OPINION

ARMSTRONG, J.

Cyril Walrond pleaded guilty to first degree murder, first degree assault, and first degree robbery. He appeals, arguing that his guilty plea lacks a factual basis. A commissioner of this court initially considered his appeal as a motion on the merits under RAP 18.14, but then referred it to a panel of judges. We affirm Walrond's convictions.

FACTS

On April 20, 2006, around 12:30 a.m., Walrond, Jarrell Marshall, and Daniel Harris stopped at Les Davis Pier on Ruston Way in Tacoma. When Carl Schmidt and Amber Limanek returned to their vehicle, Walrond or one of his companions asked Schmidt and Limanek if they had a lighter. They said no and attempted to get into their vehicle. When Schmidt turned his back, Walrond hit him in the head with a sheetrock hammer, causing him to fall forward onto the car. Schmidt's head bled profusely. Walrond and his companions stole compact discs, a cell phone, a distinctive camouflage hat, and Schmidt and Limanek's wallets.

Less than one hour later, Dien Huynh arrived at his home after work. He went inside, dropped off his lunch box, and went back outside to put down rodent poison by his automobile because rodents had been chewing through his wiring. While he was outside, Walrond and his companions spotted him and surrounded him. Walrond still had the sheetrock hammer. When Huynh realized an attack was imminent, he attempted to flee. Harris tried to place Huynh in a headlock, but Huynh broke free and ran away. Walrond then chased Huynh down and struck him on the head with the hammer four or five times. Walrond and his companions took Huynh's wallet, credit cards, and a small amount of cash. They also took car keys and the remote entry device to Huynh's vehicle. Huynh managed to crawl onto his front porch where a family member later found him. His pockets had been turned inside out. The blows caused a skull fracture from which Huynh died on April 22, 2006.

The State charged Walrond with first degree murder predicated on first degree robbery, first degree assault for Schmidt's injury, and three counts of first degree robbery for all three victims. All counts had a deadly weapon enhancement allegation. In exchange for Walrond's guilty plea, the State filed an amended information, dropping the first degree robbery counts as to Schmidt and Huynh. The trial court accepted Walrond's guilty plea. Walrond stipulated to his offender score and the trial court sentenced him to 426 months. Walrond appeals.

ANALYSIS

Walrond argues that his guilty plea lacks a factual basis. The State responds that (1) Walrond did not preserve this error for appeal and (2) a factual basis supports his guilty plea.

We do not review issues raised for the first time on appeal unless the issue involves a manifest error affecting a constitutional right. RAP 2.5(a)(3). Walrond did not dispute the factual basis for his plea in the trial court. Nor did he move to withdraw his guilty plea for lack of a factual basis. Accordingly, he cannot challenge the factual basis for his guilty plea for the first time on appeal unless it is a manifest error affecting a constitutional right.

The constitutional requirements of a voluntary guilty plea are that the defendant be aware: (1) that he is waiving the rights to remain silent, to confront his accusers, and to a jury trial; (2) of the essential elements of the offense charged; and (3) of the direct consequences of pleading guilty. State v. Holsworth, 93 Wn.2d 148, 153-57, 607 P.2d 845 (1980). The requirement in CrR 4.2(d), that there be a factual basis for the plea, is procedural. In re Pers. Restraint of Hews, 108 Wn.2d 579, 592 n. 2, 714 P.2d 983 (1987). The procedural requirements of CrR 4.2 are not constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). The factual basis of a plea, however, may be constitutionally significant where it relates to the defendant's understanding of his plea. Hews, 108 Wn.2d at 591-92.

Walrond does not argue that the lack of factual basis prevented him from understanding how his conduct constituted first degree murder, first degree assault, or first degree robbery. Therefore, the factual basis for his plea is not constitutionally significant and Walrond cannot challenge that factual basis for the first time on appeal.

Even if Walrond could raise this issue for the first time on appeal, a factual basis supports his guilty plea. A guilty plea cannot be truly voluntary "`unless the defendant possesses an understanding of the law in relation to the facts.'" In re Pers. Restraint of Keene, 95 Wn.2d 203, 209, 622 P.2d 360 (1981) (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)). As such, CrR 4.2(d) provides that

[t]he court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

A factual basis exists if there is sufficient evidence from which a jury can conclude that the defendant is guilty. State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976).

Walrond argues that his statement of defendant on plea of guilty did not provide a factual basis because it contained only legal conclusions. A factual basis requires factual statements rather than legal conclusions. State v. Zumwalt, 79 Wn. App. 124, 131, 901 P.2d 319 (1995).

Walrond's statement provides a sufficient factual basis for all three counts. A person is guilty of first degree murder when he or she commits or attempts to commit the crime of robbery, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she causes the death of a person other than one of the participants. RCW 9A.32.030(1)(c). In his statement, Walrond admitted that "[o]n April 20, 2006, in the State of WA, while attempting to rob Dien Huynh, I struck him in the head with a hammer — causing him to die." Clerk's Papers (CP) at 21 This statement contains more than just legal conclusions. It includes factual statements such as how Walrond killed Huynh and that he did so while trying to rob Huynh. A factual basis supports Walrond's plea of guilty to first degree murder.

A person commits first degree assault if he or she, with intent to inflict great bodily harm, assaults another with a deadly weapon. RCW 9A.36.011(1)(a). In his statement of defendant on plea of guilty, Walrond admitted that "on 4/20/06, I struck Carl Schmidt in the head with a hammer." CP at 21. This statement, while short, contains factual statements as to who Walrond assaulted and how. A factual basis supports Walrond's plea of guilty to first degree assault.

A person commits robbery when he or she "unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone." RCW 9A.56.190. A person is guilt of first degree robbery if, in the commission of a robbery or immediate flight therefrom, he or she is armed with a deadly weapon. RCW 9A.56.200(a)(i). In his statement, Walrond admitted that he hit Schmidt on the head with the hammer "while taking property I knew to belong to Amber Limanek, who was placed in fear of injury." CP at 21. Walrond's factual statements include that he had a hammer and that he hit Schmidt while taking Limanek's property. A factual basis supports Walrond's conviction for first degree robbery.

Walrond cites State v. Powell, 29 Wn. App. 163, 627 P.2d 1337 (1981), as support for his argument that his statement of defendant on plea of guilty contains only legal conclusions. In Powell, the defendant stated, "I did participate in the 1[st degree] murder of Charles Allison." Powell, 29 Wn. App. at 165. The trial court did not elicit any other facts. The Court of Appeals set aside his guilty plea as lacking a factual basis. Powell, 29 Wn. App. at 167. In contrast, Walrond's statement included facts and "set forth . . . the elements from which a jury could have found [him] guilty" of first degree murder, first degree assault, and first degree robbery. Powell, 29 Wn. App. at 167. Powell does not help Walrond.

Finally, Walrond's statement shows that he had a hammer in his possession and used it while committing each count. A factual basis supports a finding of a deadly weapon enhancement as to each count. See RCW 9.94A.602.

In conclusion, Walrond cannot challenge the factual basis for his guilty plea for the first time on appeal. Even if he could, his statement provides a factual basis for each count. Accordingly, we affirm his convictions.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Houghton, P.J. and Bridgewater, J., Concur.