                                                                   FILED
                                                                JULY 17, 2018
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                           )         No. 35172-6-III
                                               )
                     Respondent,               )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
BRENDAN REIDY TAYLOR,                          )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, C.J. — Old Chief v. United States, 519 U.S. 172, 191-92, 117

S. Ct. 644, 136 L. Ed. 2d 574 (1997) holds that where the existence of a prior conviction

is an element of an offense, the trial court must accept the accused’s offer to stipulate to

the prior conviction. This appeal requires us to determine whether this rule extends to an

accused’s offer to stipulate to a postconviction no-contact order. We hold that it does.

We, therefore, reverse Brendan Taylor’s conviction for felony violation of a no-contact

order and remand for retrial.

                                           FACTS

       A no-contact order prohibited Brendan Taylor from being within 1,000 feet of

Anna Kelly. But they decided to live together nevertheless.
No. 35172-6-III
State v. Taylor


       On Christmas Day of 2016, their landlord drove past their residence and saw Kelly

using a snow shovel “like a hatchet” against the windshield of Taylor’s car. Report of

Proceedings (RP) at 140. The landlord called 911.

       When the police arrived, Taylor was gone. Kelly claimed that Taylor had

assaulted her. At the time, Taylor was under supervision by the Department of

Corrections for a prior offense.

       The State charged Taylor with several crimes, including the two crimes that are at

issue on appeal: felony violation of a no-contact order and escape from community

custody.1

                                        PROCEDURE

       The day prior to trial, Taylor chose to plead guilty to some of the charges,

including escape from community custody. At the plea hearing, he presented a written

statement that provided the factual basis for his plea. The statement reads in part:

       On or about December 27, 2017 [sic2], I did willfully discontinue making
       myself available to the Department of Corrections for supervision, by
       making my whereabouts unknown or by failing to maintain contact with the
       Department as directed by the Community Corrections Office.
       1
        The State also charged Taylor with second degree assault (strangulation) and first
degree burglary. The State later charged Taylor with two counts of misdemeanor
violation of a no-contact order based on calls he made to Kelly while incarcerated. For
various reasons, these charges are not before us on appeal.
       2
           The statement erroneously states the year as 2017 instead of 2016.

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No. 35172-6-III
State v. Taylor


Clerk’s Papers (CP) at 19. Taylor signed the statement, attesting to its accuracy. When

asked by the trial court if the statement was true, Taylor responded,

       I was out of gas in Oregon. But it’s—Yeah, it’s basically true. . . . I was
       making my way to get back up here . . . .
                ....
       . . . I was on the phone with [my community corrections officer] and then
       he had left a message that I wasn’t going to be able to make an
       appointment, but it’s still—it’s still the same as—as missing out on—on
       that.

RP at 7-8.

       On the morning of trial, Taylor asked that the no-contact order be excluded in light

of his stipulation that he knew of its existence. The State responded that it planned on

admitting two no-contact orders. The following discussion occurred:

              THE COURT: . . . [S]ometimes . . . we’ll have a case where there’s
       a charge of felon in possession of a firearm,—
              ....
              THE COURT: One of the things the state would have to prove is the
       underlying felony conviction. Often-times the defense will stipulate to that
       in an effort to avoid the prejudice of having the specific named felony
       brought into the mix. And I think that’s been approved pretty regularly as
       [an] appropriate thing to do.
              ....
              [THE DEFENSE]: Right.
              [THE STATE]: And the law actually requires two [elements]. The
       state’s—state’s not willing to accept the stipulation; we’d like to use the
       order, both of them. But there’s two elements the state has to prove;
       number one that there existed a no-contact order, number two that the
       defendant knew about it.
              ....

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No. 35172-6-III
State v. Taylor


               [THE COURT]: . . . [Y]ou’re saying that the defendant Mr. Taylor
       is willing to stipulate to both of those things.
               [THE DEFENSE]: Yes.

RP at 20-21.

       After a short recess, the trial court denied Taylor’s request to accept his stipulation

in lieu of the no-contact order.

       At trial, and over Taylor’s ER 403 objection, the trial court admitted the no-contact

order. The defense asked to review the order, but the court noted, “I don’t see anything

on here that’s objectionable.” RP at 183.

       The no-contact order was signed by the same judge who presided over the trial. It

is entitled a “Domestic Violence No-Contact Order,” and is marked “Post Conviction.”

Plaintiff’s Ex. 35 at 1. The trial court’s findings of fact are also part of the order. Finding

of fact 5 states:

       Based upon the record both written and oral, the court finds that the
       defendant has been charged with, arrested for, or convicted of a domestic
       violence offense, that the defendant represents a credible threat to the
       physical safety of [Kelly], and the court issues this Domestic Violence No-
       Contact Order . . . to prevent possible recurrence of violence.

Plaintiff’s Ex. 35 at 2. The date of the order is less than one week before the alleged

assault for which Taylor was being tried.




                                              4
No. 35172-6-III
State v. Taylor


       After all of the evidence was presented, the jury convicted Taylor of felony

violation of a no-contact order. The trial court sentenced Taylor to five years of

imprisonment and one year of community custody. Taylor timely appealed.

                                        ANALYSIS

       A.     ADMISSION OF NO-CONTACT ORDER

       Taylor contends that the trial court abused its discretion when it denied his

stipulation and admitted the no-contact order. Taylor argues that the rule established in

Old Chief—and adopted by this court in State v. Johnson, 90 Wn. App. 54, 63, 950 P.2d

981 (1998)—applies equally here. That rule requires the trial court to accept the

accused’s offer to stipulate to his felony status and exclude documentary proof when the

accused’s felony status is an element of the offense charged.

       The State contends that stipulating to a no-contact order is not the same as

stipulating to a prior felony. For the reasons explained below, we disagree. We hold that

the trial court abused its discretion under ER 403 when it refused to accept Taylor’s

offered stipulation and then admitted the postconviction no-contact order.

       Whether a trial court properly applied ER 403 is reviewed for abuse of discretion.

Johnson, 90 Wn. App. at 62. A trial court abuses its discretion when its decision is

“‘manifestly unreasonable, or exercised on untenable grounds, or for untenable


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No. 35172-6-III
State v. Taylor


reasons.’” State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State

ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

       Evidence is unfairly prejudicial if it is “likely to provoke an emotional response

rather than a rational decision.” Johnson, 90 Wn. App. at 62. “The availability of other

means of proof is a factor in deciding whether to exclude prejudicial evidence.” Id.

Where the existence of a prior conviction is an element of an offense, the court must

accept the accused’s offer to stipulate to the prior conviction. Old Chief, 519 U.S. at 191-

92; Johnson, 90 Wn. App. at 63.3

       While the courts in Old Chief and Johnson recognized the general rule that the

prosecution may choose how to present the State’s evidence in an attempt to prove guilt,

both courts noted that this rule has “‘virtually no application when the point at issue is a

defendant’s legal status, dependent on some judgment rendered wholly independently of

the concrete events of later criminal behavior charged against him.’” Johnson, 90 Wn.

App. at 62-63 (quoting Old Chief, 519 U.S. at 190).




       3
        Old Chief analyzes FEDERAL RULE OF EVIDENCE 403, but its reasoning and
holding were explicitly adopted and applied to Washington’s ER 403 in Johnson, 90 Wn.
App. at 62-63.

                                              6
No. 35172-6-III
State v. Taylor


       The Old Chief Court explained:

       Proving status without telling exactly why that status was imposed leaves
       no gap in the story of a defendant’s subsequent criminality, and its
       demonstration by stipulation or admission neither displaces a chapter from a
       continuous sequence of conventional evidence nor comes across as an
       officious substitution, to confuse or offend or provoke reproach.

519 U.S. at 191. Hence, the State does not suffer any prejudice when some extant legal

status of the accused is proved by stipulation rather than by the admission of court

documents.

       Indeed, the functional difference between the value of a stipulation to the existence

of a prior conviction and of a court record naming the offense is “‘distinguishable only by

the risk [of unfair prejudice] inherent in one and wholly absent from the other.’”

Johnson, 90 Wn. App. at 63 (quoting Old Chief, 519 U.S. at 191). Evidence containing

the crime of a prior conviction is inherently prejudicial because of the risk that the jury

will “generaliz[e] a defendant’s earlier bad act into bad character” or “worse, . . . call[ ]

for preventative conviction even if [the accused] should happen to be innocent

momentarily.” Old Chief, 519 U.S. at 180-81. This risk is particularly high when the

prior conviction is for an offense similar to the one for which the accused is currently on

trial. Id. at 185.




                                               7
No. 35172-6-III
State v. Taylor


       Whether the Old Chief doctrine applies with equal effect to postconviction no-

contact orders is an issue of first impression. For the reasons set forth below, we hold

that the rationale of Old Chief applies to postconviction no-contact orders.

       First, similar to a prior conviction, the existence of a postconviction no-contact

order is dependent on a judgment rendered independent of the subsequent charges against

the defendant. As with offenses where a prior conviction is an element of the crime—in

the present case—the defendant’s legal status is at issue. Old Chief held that if the

justification for admitting the evidence was to prove some issue other than legal status—

such as motive, opportunity, intent, or knowledge—the opposing party could seek the

admission of the conviction. Here, Taylor offered to stipulate that the order was an

existing order, and he knew of it. The State fails to explain how the order has any

relevance beyond that to which Taylor offered to stipulate.

       Once the defendant stipulates to the existence of, and his knowledge of, the no-

contact order, the order itself has no additional probative value. The difference between

proof by stipulation and proof by admitting the order is only that the latter will carry a risk

of unfair prejudice to the defendant. No-contact orders generally contain prior charges,

convictions, and allegations that the defendant acted violently against the victim. They




                                              8
No. 35172-6-III
State v. Taylor


also often include other language that makes the accused appear particularly dangerous or

violent.

       All of these considerations are present here. The no-contact order contained the

phrase, “Post Conviction.” Plaintiff’s Ex. 35 at 1. It told the jury that Taylor had been

found guilty of assaulting Kelly not long before the charged felony assault. It further told

the jury that Taylor “represents a credible threat to the physical safety of [Kelly].”

Plaintiff’s Ex. 35 at 2. The threat was sufficient that the order required Taylor to

immediately surrender all firearms and other dangerous weapons.

       Here, there was no additional probative value to the no-contact order beyond

Taylor’s offered stipulation. But the risk of unfair prejudice was substantial. In light of

Taylor’s offered stipulation, the risk of unfair prejudice from admitting the no-contact

order substantially outweighed its probative value. We conclude that the trial court

abused its discretion when it admitted the no-contact order and refused to accept Taylor’s

stipulation.




                                              9
No. 35172-6-III
State v. Taylor


       The State does not argue that the error, if any, was harmless. We therefore reverse

Taylor’s conviction for felony violation of a no-contact order and remand for retrial.4

       B.      ACCEPTANCE OF GUILTY PLEA TO ESCAPE FROM COMMUNITY CUSTODY

       Taylor argues that the trial court violated his due process rights when it accepted

his guilty plea to escape from community custody. He contends that the record

establishes that his plea was not knowing, voluntary, and intelligent. As a preliminary

matter, the State asserts that Taylor may not raise this issue for the first time on appeal.

We disagree.

       RAP 2.5(a)(3) provides that “manifest error affecting a constitutional right” may

be raised for the first time on appeal. We first consider whether the issue raised affects a

constitutional right. A defendant gives up constitutional rights by agreeing to plead guilty

and, because fundamental rights of the accused are at issue, due process considerations

come into play. State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001). Due process

requires that a guilty plea be knowing, voluntary, and intelligent. State v. Buckman, 190

Wn.2d 51, 59, 409 P.3d 193 (2018). A guilty plea is not knowing, voluntary, and

intelligent when the defendant does not understand the nature of the charge. State v.



       4
        In light of our disposition, Taylor’s claims that he received ineffective assistance
of counsel and that his five-year sentence is unlawful are moot.

                                              10
No. 35172-6-III
State v. Taylor


R.L.D., 132 Wn. App. 699, 705-06, 133 P.3d 505 (2006). We conclude that the error

raised by Taylor affects a constitutional right.

       We next consider whether the error is manifest. An error is manifest if it has

“practical and identifiable consequences in the trial of the case.” State v. Stein, 144

Wn.2d 236, 240, 27 P.3d 184 (2001). Manifest error is also described as error that is

“‘unmistakable, evident or indisputable.’” State v. Burke, 163 Wn.2d 204, 224, 181 P.3d

1 (2008) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). When a

defendant at the plea hearing denies an element of the charged crime, accepting the plea

has identifiable consequences and is evident error.

       Because the issue raised by Taylor involves a manifest error affecting a

constitutional right, he may raise it for the first time on appeal.

       We next consider whether Taylor’s guilty plea was knowing, voluntary, and

intelligent. The crime of escape from community custody occurs when a person

       willfully discontinues making himself . . . available to the [Department of
       Corrections] for supervision by making his . . . whereabouts unknown or by
       failing to maintain contact with the department as directed by the
       community corrections officer . . . .

RCW 72.09.310 (emphasis added).

       Taylor provided the trial court with a signed statement in which he admitted to the

prohibited conduct. But when questioned by the court, his oral statements contradicted

                                              11
No. 35172-6-III
State v. Taylor


his written statement. Specifically, he seems to claim that he did not willfully commit the

offense because his car ran out of gas so he missed a scheduled appointment. At this

point, it was incumbent on the trial court to ask further questions to determine whether

Taylor actually understood the elements of the crime and was admitting to the prohibited

conduct. See R.L.D., 132 Wn. App. at 705-06. Yet, the trial court did not question Taylor

further.

       Taylor both admits and denies the prohibited conduct. From Taylor’s conflicting

statements, the trial court erred by not confirming that his guilty plea was knowing,

voluntary, and intelligent. The court should have questioned Taylor further to clarify the

ambiguity. We, therefore, remand for the trial court to question Taylor further.

       If Taylor admits to the prohibited conduct, his prior guilty plea is valid. However,

if Taylor denies the prohibited conduct, we direct the trial court to vacate the guilty plea

and to modify the corresponding judgment and sentence to reflect only those counts to

which Taylor knowingly, voluntarily, and intelligently pleaded guilty.




                                             12
No. 35172-6-III
State v. Taylor


         Reversed and remanded with instructions to conduct a new plea hearing and new

trial.




WE CONCUR:




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