      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           NO. 69423-5-1


                    Respondent,                DIVISION ONE


      v.

                                               UNPUBLISHED OPINION
ROY PURCELL JACKSON, JR.,

                    Appellant.                 FILED: August 11, 2014


      Leach, J. — Roy Jackson Jr. appeals his conviction for assault in the first

degree and assault in the second degree.     He claims that his guilty plea was

involuntary because he received misinformation about the sentenffhg
consequences of this plea. Jackson also claims that the trial court abusecFrts

discretion when it denied his request for a competency evaluation and that the

court had no authority to impose a lifetime no-contact order. Because JacksclQ

shows no error, we affirm.

                                     FACTS


      On April 20, 2011, while riding a Metro bus, Jackson shot passenger

Antoine Greenhaigh twice in the stomach. Jackson then pointed the gun at the

bus driver, Margaret Caster, and told her to open the door to let him out. After

Caster complied, Jackson ran away.
NO. 69423-5-1 / 2




       The State charged Jackson with first degree assault against Greenhaigh

and second degree assault against Caster.            The State sought firearm

enhancements on both counts.


       After Jackson's arraignment, Dr. Kenneth Muscatel, an expert from the

King County Office of the Public Defender, evaluated Jackson "to see if. . .

[Jackson] had a defense of diminished capacity." Muscatel described Jackson

as "a paranoid, suspicious but also rather cagey individual," who claimed no

memory of the shooting initially based upon the "misplaced belief that not

remembering what occurred was sufficient for a mental defense."          Muscatel

determined that Jackson "has chronic paranoid features and was high on Sherm

and marijuana at the time of the alleged incident." He opined that Jackson had

the "capacity to form the general intent to pull, point and shoot the gun at the

victim" and that "there is insufficient information to conclude he was so impaired

he couldn't form the intent to assault."   Muscatel concluded that Jackson "does

not meet the level of Diminished Capacity." In his report, Muscatel stated that he

had "little doubt" that Jackson "engaged in this conduct due to factors of mental

health and substance abuse.       Such factors meet the criteria for a court to

consider as mitigating factors in rendering a sentence if Mr. Jackson were found

guilty of this offense."

       On November 23, 2011, defense counsel Kris Jensen asked for a

competency evaluation at Western State Hospital because Jackson was

"inconsistent in his communicating" with Jensen.         Jensen stated that his
NO. 69423-5-1 / 3




conversations with Jackson "have always been ... hit or miss. Sometimes he is

with me, sometimes he is not [with] me; sometimes we have nutty discussions,

and sometimes they are kind of on point."       He told the court that his initial

requests to visit Jackson in jail were unsuccessful. Because Jackson was "being

very uncooperative," jail personnel would not bring him out. Jensen stated that

on November 14, 2011, he visited Jackson, who was "completely off his rocker."

Jensen explained that although Jackson recognized Jensen during that visit,

Jackson was yelling, punching the glass, "pointing to a Band-Aid on the inside of

his arm, saying that, They are doing things to him. Look at, they took my blood.

They stabbed me with things. You can't believe what they are doing to me—kind

of yelling around the room." Jensen acknowledged that Jackson understood the

charges against him and was sometimes helpful in analyzing the case.

      The State opposed the defense request for a competency evaluation. The

prosecutor noted, "The question before the Court is whether Mr. Jackson, sitting

before the Court today, is competent to be here." The State played a recorded

jail phone call from November 7, 2011, in which Jackson stated, "I am going to

tell you more when you come here to visit me because I don't know, I might try to

pump—act like I am—thinking I ought to win, and then just wait for a visit, you

know what I'm saying?"      The prosecutor told the court, "That would be the

relevant part of the conversation where he says 'I am going to act like'—and he

uses kind of lingo for crazy .... 'I am going to act like I am crazy and wait for a

better offer.'" The State also played a recorded jail phone call from November
NO. 69423-5-1 / 4




14, 2011, the day that defense counsel characterized Jackson as "off his rocker."

In this call, which Jackson had someone place on his behalf, the caller

communicated Jackson's message that "he is hoping to go to Western." The

State noted that Jackson appeared lucid in both of these phone calls.

      The trial court denied Jackson's motion for a competency evaluation. The

court reasoned,

      I certainly think that there are some issues here that are
      appropriately before the Court, in terms of what has been
      diagnosed as a polysubstance dependence—some kind of
      paranoid features, and so forth—but it sounds to me like the
      defendant is able to understand the nature of the charges against
      him, and it sounds to me like the defendant is reasonably able to
      assist in his—in his defense—by talking with counsel.
             The fact that he may be paranoid, at times, does not suggest
      to me that he is unable to communicate with counsel; the fact that
      he had an episode on the 22nd—no, that was November 14, two
      weeks ago, does not suggest to me that he would not be able to
      confer with counsel.
             It may in fact involve special meeting times and so forth and
      so on, and may be a truncated schedule, but I don't see anything
      that suggests, on this record, that he is unable to assist the
      defense.
            And again, really—the forensic psychological evaluation
      from Dr. Muscatel suggests that there could be some convenient
      lapses in judgment on the part of the defendant, and that would not
      support the request to have him evaluated.

      On May 15, 2012, Jackson pleaded guilty as charged. Paragraph 6(i) of

Jackson's statement on the guilty plea stated,

       IN   CONSIDERING      THE   CONSEQUENCES         OF   MY   GUILTY
       PLEA(S), I UNDERSTAND THAT:

      The crime of Assault 1 has a mandatory minimum sentence of at
      least 5 years of total confinement. The law does not allow any
      reduction of this sentence. ... [If not applicable, this paragraph
      should be stricken and initialed by the defendant and judge.]
NO. 69423-5-1 / 5




Jackson crossed out and initialed this paragraph, but the judge did not. In the

margin of the document, a handwritten bracket appears around this paragraph

along with the word "Applies."

      At the plea colloquy hearing, Jackson told the court that he had an

opportunity to review the plea form with his attorney. The court asked Jackson if

he understood "paragraph i—and this is on page 5—applies? So that assault in

the first degree does have a mandatory minimum sentence of five years. Do you

understand that?"    Jackson replied, "Yes."     The court found the plea to be

knowing, intelligent, and voluntary.

       Before sentencing, Jackson moved to withdraw his guilty plea based upon

ineffective assistance of counsel. He told the court,

       Well, I feel like I was really manipulated into taking this plea
       agreement or whatever, and basically a while back, Kris Jensen, he
       stated that if I showed the prosecutor this thing that I did with this
       doctor named Muscatel .... that I could get 15 years, you know
       what I'm saying? And basically that didn't happen, it was said 15
       years to 21, and I feel like that is against my rights, and I would like
       to be able to stand trial, and I asked Kris Jensen to file motions for
       me, and he said that he would not file these motions for me—to get
       into Western State, and things of that nature, because I really have
       mental problems, and he wouldn't do any of those motions.

The court appointed additional counsel to advise Jackson if a legal basis existed

on which to withdraw his guilty plea.

       On September 19, 2012, Jackson's new attorney filed a motion to

withdraw his guilty plea.    Jackson claimed that he "was confused about the

proceedings and about the evidence against him" and that he "had not enough

time to talk to his attorney about the case but was pressured to take the deal by
NO. 69423-5-1 / 6




his attorney and his family." He alleged that Jensen failed to "accommodate Mr.

Jackson's mental illnesses and ensure his comprehension of complex legal and

factual matters."   Jackson also asserted that Jensen "did not conduct the

necessary investigation in order to provide Mr. Jackson with sufficient information

to make a knowing and intelligent waiver."

      At a hearing on this motion, Jackson alleged that he did not have enough

information to make a valid waiver. His attorney argued,

      [H]e has been provided with some discovery, but not all of it; he
      had a couple of witnesses interviewed, but not all of them; and the
      defense position is that because not all of the information was
      provided to Mr. Jackson, and not all of the important witnesses
      were interviewed in this case, Mr. Jackson was not able to make a
      valid waiver of his rights at the time that he did the guilty plea.

      The court determined that Jackson failed to show ineffective assistance of

counsel sufficient to withdraw his guilty plea.     The court reasoned, "There is

nothing in the record to indicate that he was coerced or forced into pleading

guilty—but perhaps most importantly, there is absolutely nothing in the record to

show prejudice in this case." The court concluded, "Mr. Jackson has admitted to

committing these heinous crimes, he has waived his trial rights, and stated that

he voluntarily was making his plea of guilty, so the motion to withdraw the guilty

plea is denied."

      The court imposed standard range sentences of 162 months on the first

degree assault count and 43 months on the second degree assault count, to run

concurrently, and firearm enhancements of 60 months and 36 months,

respectively, to run consecutively.      The court also imposed 36 months of
NO. 69423-5-1 / 7




community custody and an order prohibiting contact with Greenhaigh and Caster

for life.


            Jackson appeals.

                                         ANALYSIS


            Jackson raises three issues. First, he claims that his guilty plea is invalid

because "he was misinformed that a mandatory minimum sentence would be

imposed for the first degree assault conviction under count I."              Second, he

asserts, "The court violated due process and statutory mandate in using the

wrong standard of proof to deny a competency evaluation."                Third, Jackson

claims, "The court exceeded its authority in ordering no contact with the victim

under count II for a period of time that exceeds the statutory minimum for the

offense."


            Jackson first claims that he is entitled to withdraw his guilty plea because

he "was misinformed about a direct consequence of his plea because he was

informed he would receive a mandatory minimum sentence but did not receive a

mandatory minimum sentence."1            A guilty plea is valid if it is intelligently and

voluntarily made and if the defendant knows that he will waive certain rights.2 A




       1 Jackson may raise this issue for the first time on appeal because "a
defendant's misunderstanding of the sentencing consequences when pleading
guilty constitutes a 'manifest error affecting a constitutional right.'" State v.
Mendoza, 157 Wn.2d 582, 589, 141 P.3d 49 (2006) (internal quotation marks
omitted) (citing State v. Walsh, 143 Wn.2d 1, 7-8, 17 P.3d 591 (2001)).
            2 State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996).
NO. 69423-5-1 / 8




plea is not knowingly made if it is based upon misinformation about the

sentencing consequences.3

       The court must allow a defendant to withdraw a guilty plea if it appears

necessary to correct a manifest injustice.4 A manifest injustice exists if (1) the

defendant did not ratify the plea, (2) the plea was not voluntary, (3) counsel was

ineffective, or (4) the plea agreement was not kept.5 This injustice must not be

obscure; it must be obvious, directly observable, and overt.6 "The defendant's

burden when seeking to withdraw a plea is demanding because ample

safeguards exist to protect the defendant's rights before the trial court accepts

the plea."7

       Jackson contends "he was informed he would receive a mandatory

minimum sentence but did not receive a mandatory minimum sentence." The

record does not support this claim. The provision in Jackson's statement on plea

of guilty pertinent to his claim provides, "The Crime of Assault 1 has a mandatory

minimum sentence of at least 5 years of total confinement. The law does not

allow any reduction of this sentence." Under the facts of this case, this correctly

stated the applicable law.

       RCW 9.94A.540(1) provides,

       3 In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004)
(citing State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988)).
       4 CrR 4.2(f).
       5 State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010) (citing
State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001)).
       6 DeClue, 157 Wn. App. at 792 (quoting State v. Taylor, 83 Wn.2d 594,
596,521 P.2d 699 (1974)).
       7 DeClue, 157 Wn. App. at 792 (citing Taylor, 83 Wn.2d at 596-97).

                                        -8-
NO. 69423-5-1 / 9




      [T]he following minimum terms of total confinement are mandatory
      and shall not be varied or modified under RCW 9.94A.535:

              (b)  An offender convicted of the crime of assault in the
      first degree or assault of a child in the first degree where the
      offender used force or means likely to result in death or intended to
       kill the victim shall be sentenced to a term of total confinement not
       less than five years.

      Although the trial court must make factual findings that a defendant meets

the requirements of the statute before imposing this minimum,8 Jackson does

not challenge the State's assertion that the record would support the necessary

finding easily. But nothing in the record supports Jackson's claim that he was

informed that the court would in fact make the necessary findings and impose

this minimum sentence. Jackson identifies no place in the record where he was

told, either orally or in writing, that the court would impose a minimum sentence

of five years.   Instead, the record explains why the court imposed a different

sentence and affirmatively demonstrates that Jackson was properly informed

about the direct consequences of his plea.

       With Jackson's criminal history, the standard range for his conviction for

assault in the first degree was 162 to 216 months. The firearm enhancement

added an additional consecutive 60 months.      The firearm enhancement for the

assault in the second degree conviction added another consecutive 36 months.

Thus, Jackson's plea exposed him to an actual minimum standard range of 258

months. Jackson's plea agreement informed him of this and also allowed his




        State v. McChristian, 158 Wn. App. 392, 402-03, 241 P.3d 468 (2010).
NO. 69423-5-1/10




counsel to request a downward deviation to 180 months "per failed mental

defense."


       The sentencing court noted, "This was a vicious, pointless crime against

an innocent person, putting the lives of numerous innocent people at risk, a crime

against a bus driver trying to do her job who was terrified half to death that she

was about to die—no reason for the crime."              The court declined Jackson's

request to impose a sentence below the standard range and imposed the State's

recommended sentence. Because Jackson fails to show any representation that

the court would impose a five-year minimum sentence on the first degree assault

count, he fails to show a manifest injustice. We deny his request to withdraw his

guilty plea.

       Jackson also claims, "The court violated due process and statutory

mandate in denying the motion for a competency evaluation because it used the

wrong standard of proof."       He alleges that the court erroneously applied a

"preponderance of the evidence" instead of a "reason to doubt" standard when

deciding his request.      After the trial court denied Jackson's motion for a

competency evaluation, Jackson did not raise this issue again. He did not raise

this issue in his motion to withdraw his guilty plea.




                                         -10-
NO. 69423-5-1/11




      A decision to order a competency evaluation rests generally within the trial

court's discretion.9 A court abuses its discretion if it bases that decision upon

untenable or manifestly unreasonable grounds.10

       Because Jackson did not preserve this issue in the trial court, he must

show a manifest error affecting a constitutional right.11 We must determine if the

alleged error suggests a constitutional issue and if the error is manifest—if the

asserted error had practical and identifiable consequences in Jackson's case.12

We address the merits of the constitutional issue only if the claimed error is

manifest.13 If we find a manifest constitutional error, we then apply a harmless

error analysis.14

       The due process clause of the Fourteenth Amendment to the United

States Constitution prohibits the conviction of a person who is not competent to

stand trial.15 Under Washington law, an incompetent person may not be tried,

convicted, or sentenced for committing an offense so long as the incapacity

continues.16 To be legally competent, a criminal defendant must be able to


       9 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610
(2001) (citing State v. Thomas, 75 Wn.2d 516, 518, 452 P.2d 256 (1969)).
       10 State v. Jamison, 105 Wn. App. 572, 590, 20 P.3d 1010 (2001).
       11 RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251
(1995).
      12 State v. Harris, 154 Wn. App. 87, 94, 224 P.3d 830 (2010) (citing State
v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
       13 Harris, 154 Wn. App. at 94 (citing Lynn, 67 Wn. App. at 345).
       14 Harris, 154 Wn. App. at 94 (citing Lynn, 67 Wn. App. at 345).
       15 Fleming, 142 Wn.2d at 861 (citing Drope v. Missouri, 420 U.S. 162, 171,
95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86
S. Ct. 836, 15 L. Ed. 2d 815 (1966)).
          16 Fleming, 142 Wn.2d at 862 (quoting RCW 10.77.050).

                                        -11-
NO. 69423-5-1/12




understand the nature of the charges against him and must be capable of

assisting in his defense.17 The competency standard for pleading guilty is the

same as the competency standard for standing trial.18

      When a reason exists to doubt a defendant's competency,

      the court on its own motion or on the motion of any party shall
      either appoint or request the secretary to designate at least two
      qualified experts or professional persons, one of whom shall be
      approved by the prosecuting attorney, to examine and report upon
      the mental condition of the defendant.1191

To determine whether or not to order a competency evaluation, a trial court may

consider the defendant's appearance, demeanor, conduct, personal and family

history, past behavior, mental and psychiatric reports, and statements from

defense counsel.20

      If the court orders a competency hearing, a defendant has the burden of

proving by a preponderance of the evidence that he is incompetent to stand

trial.21 "Preponderance of the evidence means that considering all the evidence,

the proposition asserted must be more probably true than not true."22




      17 Fleming, 142 Wn.2d at 862 (citing State v. Hahn, 106 Wn.2d 885, 894,
726 P.2d 25 (1986); State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985)).
      18 Fleming. 142 Wn.2d at 862 (citing Godinez v. Moran, 509 U.S. 389,
399, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993)).
      19 Former RCW 10.77.060(1 )(a) (2004).
      20 Fleming, 142 Wn.2d at 863 (quoting State v. Dodd. 70 Wn.2d 513, 514,
424 P.2d 302 (1967)).
      21 Medina v. California, 505 U.S. 437, 450-51, 112 S. Ct. 2572, 120 L Ed.
2d 353 (1992); State v. P.E.T., 174 Wn. App. 590, 597, 300 P.3d 456 (2013),
petition for review filed, No. 89157-5 (Wash. Aug. 2, 2013).
       22 State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 (2009) (citing State
v. Ginn, 128 Wn. App. 872, 878, 117P.3d 1155(2005)).

                                       -12-
NO. 69423-5-1/13




       "[A] court is not obliged to determine a defendant's competency when

there is no factual basis for doubting it in the first place."23 The mere existence of

a mental disorder does not establish incompetency.24 And the ability to assist

defense counsel does not require the defendant to be able to choose or suggest

trial strategy.25   In State v. Hicks,26 the court determined that the fact the

defendant was angry with his attorney and not fully cooperative did not mean that

he was incompetent to stand trial.

       When asked about the proper standard and burden of proof to order a

competency hearing, the prosecutor cited City of Seattle v. Gordon27 in stating,

"Before a determination of competency is required, the Court must make a

threshold determination that there is reason to doubt his competency." Jensen

stated that he did not know the proper standard. The court later stated, "I believe

that the standard is a preponderance of the evidence."

       Jackson fails to show a manifest error warranting appellate review. Even

if the court applied the incorrect standard, Jackson's communications with his

attorney provide no indication that he failed to understand the charges against

him or was unable to assist his attorney when he pleaded guilty. And Muscatel's

report presented no evidence that Jackson was incompetent to stand trial or to

      23 State v. DeLauro, 163 Wn. App. 290, 296, 258 P.3d 696 (2011) (citing
State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177 (1991); City of Seattle v.
Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985)).
      24 State v. Smith, 74 Wn. App. 844, 850, 875 P.2d 1249 (1994).
      25 State v. Benn, 120 Wn.2d 631, 662, 845 P.2d 289 (1993); Ortiz, 104
Wn.2d at 483-84.
        26 41 Wn. App. 303, 309, 704 P.2d 1206 (1985).
        27 39 Wn. App. 437, 441, 693 P.2d 741 (1985).

                                         -13-
NO. 69423-5-1 /14




plead guilty. The State's evidence suggests that Jackson was lucid and tried to

appear incompetent to benefit his case.        Indeed, Jensen told the court that

Jackson understood the charges against him and was sometimes helpful in

analyzing the case.      Nothing in the record about Jackson's appearance,

demeanor, or conduct during the proceedings suggests incompetence.

      Finally, Jackson alleges that the trial court abused its discretion when it

imposed an order prohibiting contact with Caster for life.        We also review

sentencing conditions for an abuse of discretion.28 This court will usually uphold

sentencing conditions if they are reasonably crime related.29

       RCW 9.94A.505(8) permits a court to impose and enforce crime-related

prohibitions as part of any sentence. A "crime related prohibition" is a court order

"prohibiting conduct that directly relates to the circumstances of the crime for

which the offender has been convicted."30 A court may impose crime-related

prohibitions "for a term of the maximum sentence to a crime, independent of

conditions of community custody."31      Crime-related prohibitions may include

orders prohibiting contact with witnesses.32



       28 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008) (citing State v.
Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)).
       29 Warren, 165 Wn.2d at 32.
       30RCW9.94A.030(10).
       31 Warren, 165 Wn.2d at 32 (citing State v. Armendariz, 160 Wn.2d 106,
112, 120, 156P.3d201 (2007)).
    32 State v. Janda, 174 Wn. App. 229, 235, 298 P.3d 751 (2012) (citing
RCW 9.94A.505(8), review denied, 176 Wn.2d 1032, cert denied, 134 S. Ct. 221
(2013); Armendariz, 160 Wn.2d at 110); State v. Ancira, 107 Wn. App. 650, 656,
27 P.3d 1246 (2001).


                                        -14-
NO. 69423-5-1/15




       Jackson pleaded guilty to first degree assault against Greenhaigh and

second degree assault against Caster. The maximum sentence for first degree

assault is life and the maximum sentence for second degree assault is 10

years.33 Because Caster witnessed Jackson's assault against Greenhaigh and

the assault against her arose from the assault against Greenhaigh, the trial court

did not abuse its discretion when it prohibited contact with Caster for life.

                                   CONCLUSION


       Because Jackson fails to establish grounds entitling him to withdraw his

guilty plea, a manifest error affecting a constitutional right allowing him to

challenge the trial court's denial of his motion for a competency evaluation, or

that the trial court abused its discretion when it prohibited contact with Caster for

life, we affirm.




WE CONCUR:




    Ii/^^qv. ^r                                             Qua^ -




        33 RCW9A.36.011(2); RCW 9A.20.021(1)(a); RCW 9A.36.021(2)(a); RCW
9A.20.021(1)(b).

                                         -15-
