                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         July 9, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                              No. 51505-9-II

                                Respondent,

          v.

 MARIO MARSHAWN STEELE,                                      UNPUBLISHED OPINION

                                Appellant.

         MELNICK, P.J. — Mario Steele appeals his convictions for manslaughter in the first degree

and robbery in the first degree. He argues that the convictions violate double jeopardy, requiring

dismissal of the lesser offense (robbery in the first degree). In the alternative, he argues his

convictions merged, requiring a remand for resentencing. In his statement of additional grounds

for review (SAG), Steele alleges that sufficient evidence does not support his convictions and

prosecutorial misconduct. We affirm his convictions and sentence.

                                              FACTS

         On the evening of January 16, 2011, Lenard Masten was shot and killed at his apartment

complex in Lakewood. Earlier that day, Masten sold cocaine to Steele and another man who Steele

knew as “Dre.” Clerk’s Papers (CP) at 47. Being dissatisfied with the quality of the cocaine,

Steele and Dre decided they would rob Masten to get their money back. Steele set up a meeting

to confront Masten. Steele’s phone records show a brief call between Steele’s phone and Masten’s

phone minutes before the murder. During a confrontation, Masten was shot. Witnesses saw one

of the men rummaging through Masten’s clothing and taking Masten’s phone, keys, and other

items.
51505-9-II


         The State originally charged Steele with murder in the first degree. Steele entered an

Alford1 plea to manslaughter in the first degree while armed with a firearm and robbery in the first

degree. The State charged Steele with manslaughter based on Steele’s “participa[tion] in the

assault of Lenard Masten” thereby recklessly causing Masten’s death and that in the commission

of the crime, Steele, or an accomplice, was “armed with a firearm.” CP at 2. The State charged

Steele with robbery based on Steele’s “tak[ing of] personal property belonging to another with

intent to steal from the person . . . by use or threatened use of immediate force, violence, or fear of

injury . . . and in the commission therefore, or in immediate flight therefrom, [Steele] was armed

with a deadly weapon.” CP at 3.

         Steele agreed that, based on the evidence, there was a substantial likelihood that a trier of

fact could find him guilty of the charges. Steele agreed that the court could establish a factual

basis for the plea by reviewing the statement of probable cause. It provided:

                 On January 16, 2011 at 20:32 hours, Lakewood Police were dispatched to
         5510 Chicago Ave SW regarding a shooting. Lenard Masten, the victim, lived in
         an apartment at this address. En route dispatched advised the officers that the
         suspects were two black males in their 20s and one was armed with a gun. When
         the officers arrived, Lakewood Fire Department personnel was treating the [sic]
         Mr. Masten. Mr. Masten had a gunshot wound to his stomach. Mr. Masten was
         transported to St. Joseph Hospital, where he died in surgery.
                 Investigating detectives learned Mr. Masten had been dealing drugs. The
         detectives also learned STEELE had made several phone calls, both from his cell
         phone and landline, to Mr. Masten on the day of the murder. STELLE [sic] was
         interviewed by detectives and admitted to being involved in a drug deal with Mr.
         Masten at about 3:30 pm the day of the murder. STEELE told detectives he and a
         man known only as “Dre” purchased drugs from Mr. Masten. The defendant said
         that Dre was upset after the transaction because the drugs were bunk (fake).
                 Dre asked STEELE to set-up a meeting so he could confront Mr. Masten.
         STEELE told the detectives that Dre said “I'll get his ass.” STEELE believed Dre
         would either rob or assault Mr. Masten. STEELE admitted he set-up this meeting
         and phone records confirm there was a brief call between STEELE’S phone and
         Mr. Masten’s phone minutes before the murder.

1
    North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


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                  Witnesses at the murder scene described the victim being confronted by two
           black males: a taller darker skinned man and a lighter skinned, shorter man with a
           goatee. One witness said she saw the man with the goatee carrying a handgun in
           the moments after the shooting. Witnesses indicated that the shooting party
           rummaged through Mr. Masten’s clothing and apparently took his cell phone, keys
           and perhaps other tiems [sic]. The shooter was observed running toward Masten’s
           apartment door. Assailants eventually ran to a nearby dark colored SUV and drove
           away.

CP 47-48.

           On August 31, 2012, the trial court accepted Steele’s plea and followed the agreed

sentencing recommendation, which was 185 months (125 months plus 60 months on the firearm

enhancement) on the manslaughter conviction and 54 months on the robbery conviction to run

concurrently. On February 20, 2018, Steele appealed.2

                                               ANALYSIS

           Steele contends his convictions for manslaughter in the first degree and robbery in the first

degree violate double jeopardy, requiring dismissal of the lesser offense (robbery in the first

degree). In the alternative, he argues his convictions merge, requiring a remand for resentencing.

We disagree with both assertions.

I.         DOUBLE JEOPARDY

           The Fifth Amendment to the United States Constitution and article I, section 9 of the

Washington State Constitution provide protections against double jeopardy. State v. Brown, 159

Wn. App. 1, 9, 248 P.3d 518 (2010). These double jeopardy clauses prohibit the State from

punishing an offender multiple times for the same offense. State v. Linton, 156 Wn.2d 777, 783,

132 P.3d 127 (2006). We review double jeopardy claims de novo. State v. Kelley, 168 Wn.2d 72,

76, 226 P.3d 773 (2010).


2
     A commissioner of this court granted Steele’s motion to file a late notice of appeal.


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          Initially, the State argues that by pleading guilty in 2012, Steele waived his right to

collaterally attack his convictions based on double jeopardy grounds. “A guilty plea generally

insulates the defendant’s conviction from collateral attack.” State v. Knight, 162 Wn.2d 806, 811,

174 P.3d 1167 (2008). However, there are exceptions to the general rule, and particularly where

“on the face of the record the court had no power to enter the conviction or impose the sentence.”

United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989). Therefore,

our review in this case is limited to whether a double jeopardy violation is apparent from our

record. In re Pers. Restraint of Schorr, 191 Wn.2d 315, 324, 422 P.3d 451 (2018). This means

that we look solely to the probable cause statement, which Steele agreed provided the factual basis

for his pleas.

          To determine if a defendant has been punished multiple times for the same offense, we

traditionally apply the “same evidence” test. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155

(1995).     “The same evidence test mirrors the federal ‘same elements’ standard adopted in

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” State v.

Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). Under the same evidence test, double jeopardy

is violated when a defendant is convicted of offenses which are the same in law and in fact. Calle,

125 Wn.2d at 777-78. If each offense, as charged, includes elements not included in the other, or

requires proof of a fact that the other does not, the offenses are different and multiple convictions

can stand. Calle, 125 Wn.2d at 777-78. The inquiry requires a case-by-case determination. State

v. Freeman, 153 Wn.2d 765, 780, 108 P.3d 753 (2005).

          As charged in this case, manslaughter in the first degree occurs when a person “recklessly”

causes the death of another person. RCW 9A.32.060(1)(a). Robbery in the first degree occurs

when a person takes personal property belonging to another with intent to steal from the person by



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use or threatened use of immediate force, violence, or fear of injury and in the commission

therefore, or in immediate flight therefrom, he or she was “armed with a deadly weapon.” RCW

9A.56.200(1)(a)(i).

       Proving robbery in the first degree, as charged here, does not establish manslaughter in the

first degree because robbery in the first degree by means of being armed with a deadly weapon

does not require actual injury to the victim. Indeed, a robbery can occur even though the taking is

not completed until after the victim’s death. State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151

(1973). Conversely, proving manslaughter does not prove the robbery because manslaughter

contains no theft element. See State v. Cole, 117 Wn. App. 870, 875, 73 P .3d 411 (2003)

(attempted robbery by use of a knife and second degree assault not the same offense in law). Thus,

the two offenses are not the same in law.

       The offenses are also not the same in fact. The evidence of the shooting or an assault as

being part of the “reckless” act that caused the death of Masten does not conflict with robbery in

the first degree based on being armed with a firearm. Separate facts support each conviction.

Therefore, Steele’s convictions for manslaughter in the first degree and robbery in the first degree

do not violate double jeopardy.

II.    MERGER

       Turning to Steele’s merger argument, like double jeopardy, we review alleged merger

violations de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).

       “The merger doctrine, independent of double jeopardy concerns, evaluates whether the

legislature intended multiple crimes to merge into a single crime for punishment purposes.” State

v. Novikoff, 1 Wn. App. 2d 166, 172-73, 404 P.3d 513 (2017). “The merger doctrine applies only




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when, in order to prove a more serious crime, the State must prove an act that a statute defines as

a separate crime.” Novikoff, 1 Wn. App. 2d at 173.

       The merger doctrine applies when the legislature clearly indicates that it did not intend to

impose multiple punishments for a single act that violates several statutory provisions. State v.

Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983). “[W]hen the degree of one offense is

raised by conduct separately criminalized by the legislature, we presume the legislature intended

to punish both offenses through a greater sentence for the greater crime.” Freeman, 153 Wn.2d at

772-73 (legislature intended to punish assault in the first degree and robbery in the first degree

separately). If each crime has “an independent purpose or effect” they may be punished separately.

Freeman, 153 Wn.2d at 773. We determine whether convictions merge on a case-by-case basis.

State v. Saunders, 120 Wn. App. 800, 821, 86 P.3d 232 (2004).

       Here, Steele pleaded guilty to manslaughter in the first degree and robbery in the first

degree. As discussed above, Steele recklessly caused the death of Masten by setting up a meeting

between Steele, Masten, and Dre. Masten admitted that he believed Dre was going to “rob or

assault” Masten. CP at 48. Masten was then shot. After the manslaughter, witnesses saw one of

the men take personal property from Masten.

       Because the degree of one offense is not raised by conduct separately criminalized by the

legislature and each crime has an independent purpose or effect, the two convictions do not merge

for sentencing purposes.

III.   SAG ISSUES

       In his SAG, Steele first expresses his remorse for his actions and then appears to argue that

sufficient evidence does not support his convictions and prosecutorial misconduct. A defendant

waives a sufficiency of the evidence arguments when he or she pleads guilty. In re Pers. Restraint



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of Bybee, 142 Wn. App. 260, 268, 175 P.3d 589 (2007). Moreover, Steele does not provide

meaningful argument to explain his prosecutorial misconduct argument to warrant review. See

RAP 10.10(c) (appellate court not obligated to search record in support of claims made in SAG);

see also State v. Meneses, 149 Wn. App. 707, 716, 205 P.3d 916 (2009) (although a defendant is

not required to cite to the record or authority in his SAG, “he must still ‘inform the court of the

nature and occurrence of [the] alleged errors.’”). Accordingly, we decline to reach Steele’s SAG

issues.

                                           CONCLUSION

          Because Steele’s convictions for manslaughter in the first degree and robbery in the first

degree do not violate double jeopardy or merge and because he raises no meritorious issues in his

SAG, we affirm Steele’s convictions and sentence.

          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 in accordance with RCW 2.06.040,

it is so ordered.




                                                              Melnick, P.J.

We concur:




          Sutton, J.




          Glasgow, J.



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