                                                        FILED -
                                                                    DIV I
                                                COURT OF APPEALS
                                                          WASI-i111G1 011
                                                 STATE OF
                                                                    29
                                                 2q11 JUL 31 tVi10;




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

STATE OF WASHINGTON,                     )       No. 76747-0-1
                                         )
                        Respondent,      )
                                         )
                v.                       )       UNPUBLISHED OPINION
                                         )
JUSTIN PHILLIP DAVIS,                    )
                                         )
                        Appellant.       )       FILED: July 31, 2017

       SCHINDLER, J. — The State charged Justin Phillip Davis with drive-by shooting,

three counts of assault in the first degree while armed with a firearm, unlawful

possession of a firearm in the first degree, and witness tampering. After several days of

trial testimony, Davis pleaded guilty to drive-by shooting and unlawful possession of a

firearm in the first degree. For the first time on appeal, Davis argues the court did not

have an adequate factual basis to accept his plea to the crime of drive-by shooting.

Davis also challenges calculation of his offender score, the conditions of community

custody, and imposition of the mandatory criminal filing fee. We affirm.

                                          FACTS

       On May 22, 2015, the State charged Justin Phillip Davis with drive-by shooting in

violation of RCW 9A.36.045(1), three counts of assault in the first degree while armed

with a firearm in violation of RCW 9A.36.011(1)(a), unlawful possession of a firearm in
No. 76747-0-1/2

the first degree in violation of RCW 9.41.040(1)(a), and tampering with a witness in

violation of RCW 9A.72.120(1)(a). Davis entered a plea of not guilty.

       Before trial, the court found Davis knowingly, intelligently, and voluntarily waived

his right to counsel and granted his request to represent himself. The court appointed

standby counsel to assist Davis.

       The jury trial began on June 11,2015. The State called a number of witnesses

to testify, including Davis's girlfriend Angela Radford, Radford's 18-year-old son Leilua

Samaga, police officers, a Tacoma Police Department forensic specialist, a Tacoma

Police Department latent finger print examiner, and a Washington State Patrol Crime

Laboratory(WSPCL)forensic scientist.

       Radford testified that between 1:00 a.m. and 4:00 a.m. on November 17, 2014,

Davis left her apartment in a white Toyota car "to go make a sale" at a hotel in Tacoma.

Radford said Davis called her a short time later "to come get him" because he "just got

robbed" and the robbers had taken his car keys. Radford drove to pick up Davis in her

silver Dodge Avenger and returned to her apartment. Radford testified that the next

morning at approximately 9:00 a.m., she, Davis, and Samaga drove back to the hotel.

Radford said she drove her Dodge Avenger, Davis was in the front passenger seat, and

Samaga was in the back seat. Radford stated that when they got to the hotel, they saw

three individuals getting into Davis's Toyota. Radford said Davis told her to follow the

Toyota. Radford testified that after following the Toyota for 5 or 10 minutes, Davis

"pulled out a gun and started shooting at them."

       Q      As you were following the vehicle, what happened?
       A      . . . We continued to follow them, and we turned down, I believe
              82nd Street, and then [Davis] pulled out a gun and started shooting
              at them.


                                             2
No. 76747-0-1/3

      . . ..
      Q      What did you see Mr. Davis doing? Describe to the jury what he
             was doing.
      A      Shooting at the car.

Radford testified Davis fired "a lot" of shots at the Toyota.

       Samaga testified there were three people inside the Toyota. Samaga said that

Davis rolled down the front passenger-side window and "started shooting" at the Toyota.

     •       Now, as you were following the vehicle, what happened?
     A       We followed the car.
     Q       What happened after you followed the car?
     A       [Davis] started shooting. ...
             ... Could you repeat what you said?
       A     He turned down the hand window, and we were riding, following his
             car, and then he started shooting towards his car.
       Q     You just said a lot of stuff, you indicated that he rolled down the
             window?
       A     Yeah.

       Tacoma Police Officer Jared Williams testified that during a search of the Dodge

Avenger, he found a loaded .40 caliber Glock pistol, a loaded .380 caliber Davis

Industries pistol, and a spare magazine for the Glock pistol in the trunk. Officer Jason

Mills testified there were "bullet strikes" on the Toyota Camry.

       Tacoma Police Department Forensic Specialist Donovan Valez recovered 11

spent shell casings and two "bullet fragments" from the street where the shooting

occurred. Valez testified he found a latent fingerprint impression on one of the .40

caliber cartridges in the spare magazine found in the trunk of the Dodge. Tacoma

Police Department Latent Fingerprint Examiner Toni Martin testified that the fingerprint

found on the .40 caliber cartridge matched Davis's right thumb.

       WSPCL Supervising Forensic Scientist Terry Franklin testified he examined the

11 spent shell casings recovered by the police. Franklin testified that the shell casings



                                              3
No. 76747-0-1/4

were fired from the .40 caliber Glock the police found in the trunk of the Dodge.

       On June 17, the State filed an amended information. Davis agreed to plead

guilty to drive-by shooting and unlawful possession of a firearm in the first degree as

charged in the amended information.

       In the "Statement of Defendant on Plea of Guilty to Non-Sex Offense," Davis

describes in his "own words" why he is guilty of the charged crimes.

      The judge has asked me to state what I did in my own words that makes
      me guilty of this crime.
      This is my statement: On Nov[ember] 17, 2014 I fired a gun from a
      moving vehicle creating a substantial risk of death or serious physical
      injury to individuals in and around the immediate area of the motor vehicle.
      I was a passenger at the time. I also have a previous conviction for a
      serious offense and am prohibited from owning or possessing a firearm.
      All this took place in Pierce Co[unty,] WA.

       Davis also entered into a "Stipulation on Prior Record and Offender Score."

Davis stipulated that he had an offender score of 7 for both counts.

      At the hearing on the guilty plea, the trial court conducted an extensive colloquy

on entry of the guilty plea. The court specifically asked Davis about his statement that

he was guilty of the crime of drive-by shooting and unlawful possession of a firearm.

             ... It says here in paragraph 11 that: On November 17th, 2014, I
             fired a gun from a moving vehicle creating a substantial risk of
             death or serious physical injury to individuals in and around the
             immediate area of the motor vehicle. I was a passenger at the
             time. I also have a previous conviction for a serious offense and
             am prohibited from owning or possessing a firearm. All this took
             place in Pierce County, Washington.
                      Mr. Davis, is that a correct statement?
      A      Yes, sir.
             Is that what happened?
      A      Similar.
             Say again?
       A     It was similar.
             Sir, let me ask you this, did you fire a gun from a moving vehicle?
       A     Yes, sir.


                                            4
No. 76747-0-1/5

               Had you had a previous conviction for what is defined as a serious
               offense under the statute?
        A      Yes, sir.

        The court found Davis knowingly, intelligently, and voluntarily entered into the

Statement of Defendant on Plea of Guilty and was guilty as charged.

        I'm going to find that Mr. Davis's plea is knowingly, intelligently, and
        voluntarily rendered, and, accordingly, I'm going to accept his plea, find
        him guilty of those two offenses that are contained in the Second
        Amended Information.

        At the June 24 sentencing hearing, Davis filed a motion to withdraw his guilty

plea. In his affidavit, Davis states,"The defendant should be permitted to withdraw his

guilty plea since there existed only an ambiguous expression of qualified guilt coupled

with as [sic] statement of facts." The court denied the motion to with draw the guilty

plea.

        [T]he Court ... engaged in what I believe to be was a thorough
        providency [sic] inquiry with Mr. Davis to ensure that he understood the
        nature and the consequences of the rights he was relinquishing by
        entering into this plea. And the Court was satisfied, I think the Court
        continues to be satisfied, that Mr. Davis's entry of a guilty plea was
        knowingly, intelligently, and voluntarily rendered. Therefore, the court
        respectfully denies his motion to withdraw his guilty plea.

        The court sentenced Davis to 70 months of confinement. The court waived

imposition of all discretionary fees and costs. The court ordered Davis to pay the

mandatory victim penalty assessment, DNAI database fee, and criminal filing fee.

                                         ANALYSIS

Motion to Withdraw Guilty Plea

        Davis argues the court erred in denying his motion to withdraw his guilty plea.

For the first time on appeal, Davis claims the court violated CrR 4.2(d) by entering


        1 Deoxyribonucleic acid.


                                              5
No. 76747-0-1/6

judgment on his guilty plea to the drive-by shooting charge without an adequate factual

basis for the plea.2

        CrR 4.2(d) states:

        The 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.

        As a general rule, we do not consider issues raised for the first time on appeal

unless the alleged error is a manifest constitutional error. RAP 2.5(a)(3); State v.

Gentry, 183 Wn.2d 749, 760, 356 P.3d 714(2015); State v. Kalebaugh, 183 Wn.2d 578,

583, 355 P.3d 253(2015); State v. Arredondo, 188 Wn.2d 244, 262-63, 394 P.3d 348

(2017). It is the appellant's burden to show that the alleged error was both "truly of

constitutional dimension" and "manifest." State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d

756(2009); State v. Hart, 195 Wn. App. 449,460, 381 P.3d 142(2016).

        Although CrR 4.2(d) requires a trial court to be "satisfied that there is a factual

basis for the plea," this requirement is procedural and not constitutionally required.

State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996); State v. Bird, 187 Wn.

App. 942, 945, 352 P.3d 215 (2015); In re Pers. Restraint of Hews, 108 Wn.2d 579,

591-92, 741 P.2d 983(1987); In re Pers. Restraint of Hilyard, 39 Wn. App. 723, 727,

695 P.2d 596 (1985). Because Davis did not challenge the factual basis of the plea

under CrR 4.2(d) below and does not argue his plea was not voluntary, intelligent, and

knowing, we decline to consider the argument for the first time on appeal.




         2 Davis does not challenge his guilty plea to the charge of unlawful possession of a firearm in the
first degree.


                                                     6
No. 76747-0-1/7

        Nonetheless, we note the Statement of Defendant on Plea of Guilty as well as

the testimony at trial clearly established a factual basis for the guilty plea to drive-by

shooting.3 A factual basis for a plea exists if there is evidence "sufficient for a jury to

conclude the defendant is guilty." In re Pers. Restraint of Cross, 178 Wn.2d 519, 526,

309 P.3d 1186 (2013); State v. Easterlin, 159 Wn.2d 203, 210, 149 P.3d 366 (2006);

State v. Zhao, 157 Wn.2d 188, 198, 137 P.3d 835 (2006). The trial court may look to

"any reliable source" to determine that there is a factual basis for a guilty plea. Cross,

178 Wn.2d at 526; State v. Codicia, 162 Wn.2d 912, 924, 175 P.3d 1082(2008); Zhao,

157 Wn.2d at 198.

Offender Score

        Davis claims the court erred by including a 2007 Louisiana "simple burglary"

conviction in his offender score. Davis asserts the crime is not comparable to a

Washington offense. But the Louisiana burglary conviction was not included in Davis's

offender score. Although Davis's criminal history lists the 2007 Louisiana simple

burglary conviction, the Stipulation on Prior Record and Offender Score shows Davis's

offender score does not include any points for the Louisiana conviction.4 The "[s]core

by [count]" assigned to Davis's 2007 Louisiana simple burglary conviction appears as




        3 Under RCW 9A.36.045(1), a person is guilty of the crime of drive-by shooting when he
"recklessly discharges a firearm. .. in a manner which creates a substantial risk of death or serious
physical injury to another person and the discharge is ... from a motor vehicle."
        A person who unlawfully discharges a firearm from a moving motor vehicle may be
        inferred to have engaged in reckless conduct, unless the discharge is shown by evidence
        satisfactory to the trier of fact to have been made without such recklessness.
RCW 9A.36.045(2).
        4 Davis also stipulated that his "criminal history and scoring are correct, producing an offender
score" of 7.
        5 Not applicable.



                                                     7
No. 76747-0-1/8

Community Custody Conditions

       Davis challenges the following community custody conditions as

unconstitutionally vague:

      [x] remain[]within[]outside of a specified geographic boundary, to wit:
      per CCO[61

      [x] participate in the following crime-related treatment or counseling
      services: per CCO

      [x] comply with the following crime-related prohibitions: per CCO.

      "[V]agueness challenges to conditions of community custody may be raised for

the first time on appeal." State v. Bahl, 164 Wn.2d 739, 745, 193 P.3d 678(2008). We

review the imposition of community custody conditions for manifest abuse of discretion.

Bahl, 164 Wn.2d at 753; State v. Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059

(2010). A sentencing condition is unconstitutionally vague if

       it "(1).. . does not define the [prohibited conduct] with sufficient
       definiteness that ordinary people can understand what conduct is
       proscribed, or (2)... does not provide ascertainable standards of guilt to
       protect against arbitrary enforcement."

Bahl, 164 Wn.2d at 752-537(quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178,

795 P.2d 693(1990)). When determining whether a sentencing condition is

unconstitutionally vague, the "terms are not considered in a 'vacuum,' rather, they are

considered in the context in which they are used." Bahl, 164 Wn.2d at 754 (quoting

Douglass, 115 Wn.2d at 180).

       The community custody conditions that Davis challenges are not

unconstitutionally vague.



       6 Community    corrections officer.
       7 Ellipses in original.



                                             8
No. 76747-0-1/9

      Under RCW 9.94A.703(1)(b), the trial court shall order an offender to comply with

conditions imposed by the Department of Corrections(DOC) under RCW 9.94A.704.

RCW 9.94A.703 states, in pertinent part:

            (1) Mandatory conditions. As part of any term of community
      custody, the court shall:

            (b) Require the offender to comply with any conditions imposed by
      the department[(DOC)] under RCW 9.94A.704.

      RCW 9.94A.704(1) states every offender "sentenced to a period of community

custody shall report to and be placed under the supervision of the department." RCW

9.94A.704(2) requires DOC to assess the risk of reoffense and "establish and modify

additional conditions of community custody based upon the risk to community safety."

RCW 9.94A.704(2)(a). RCW 9.94A.704(2) states:

      (a) The department shall assess the offender's risk of reoffense and may
      establish and modify additional conditions of community custody based
      upon the risk to community safety.
            (b) Within the funds available for community custody, the
      department shall determine conditions on the basis of risk to community
      safety, and shall supervise offenders during community custody on the
      basis of risk to community safety and conditions imposed by the court.
      The secretary shall adopt rules to implement the provisions of this
      subsection (2)(b).

      RCW 9.94A.704(3) requires DOC "at a minimum" to "instruct the offender to ...

[r]emain within prescribed geographical boundaries." RCW 9.94A.704(3)(b). RCW

9.94A.704(3) states:

      If the offender is supervised by the department, the department shall at a
      minimum instruct the offender to:
              (a) Report as directed to a community corrections officer;
              (b) Remain within prescribed geographical boundaries;
              (c) Notify the community corrections officer of any change in the
      offender's address or employment;
              (d) Pay the supervision fee assessment; and
              (e) Disclose the fact of supervision to any mental health or


                                           9
No. 76747-0-1/10

       chemical dependency treatment provider, as required by RCW 9.94A.722.

RCW 9.94A.704(4) authorizes DOC to "require the offender to participate in

rehabilitative programs, or otherwise perform affirmative conduct, and to obey all laws."

       The trial court did not abuse its discretion in ordering Davis to comply with the

statutory community custody conditions that are authorized under RCW 9.94A.704.

Legal Financial Obligations

       Davis challenges imposition of the mandatory $200 criminal filing fee. Davis

argues the court did not conduct an individualized inquiry into his ability to pay the fee.

But the criminal filing fee is statutorily mandated under RCW 36.18.020(2)(h) and must

be imposed regardless of the defendant's ability to pay. State v. Lundy, 176 Wn. App.

96, 102-03, 308 P.3d 755 (2013); State v. Gonzales, 198 Wn. App. 151, 155, 392 P.3d

1158(2017); State v. Stoddard, 192 Wn. App. 222, 225, 366 P.3d 474(2016).

Statement of Additional Grounds

       In his pro se statement of additional grounds, Davis appears to argue the court

erred in denying his motion to withdraw his guilty plea based on its finding that his guilty

plea was knowing, voluntary, and intelligent.

       Whether Davis's plea of guilty was voluntary and intelligent "is a question of fact

'peculiarly within the province of the trial court.'" State v. Davis, 125 Wn. App. 59, 68,

104 P.3d 11(2004)(quoting State v. McLaughlin, 59 Wn.2d 865, 870, 371 P.2d 55

(1962)). We will not overturn the trial court's finding unless it is "manifestly erroneous."

McLaughlin, 59 Wn.2d at 870. "A defendant's signature on a plea statement is strong

evidence of a plea's voluntariness." In re Det. of Scott, 150 Wn. App. 414, 427, 208

P.3d 1211 (2009); Branch, 129 Wn.2d at 642. When the court" inquire[s] orally of the



                                             10
No. 76747-0-1/11

defendant and satisfies [itself] on the record of the existence of the various criteria of

voluntariness, the presumption of voluntariness is well nigh irrefutable.'" Scott, 150

Wn. App. at 4278 (quoting Branch, 129 Wn.2d at 642 n.2).

       The record supports the court's finding that Davis's guilty plea was knowing,

voluntary, and intelligent. Davis's signed Statement of Defendant on Plea of Guilty

states, "I make this plea freely and voluntarily" and "[n]o one has threatened harm of

any kind to me or to any other person to cause me to make this plea." The court also

asked Davis whether his plea was voluntary.

      •        Has anybody made any threats to you to harm you to make this
               plea?
      A        No, sir, your Honor.
      •        Do you feel as if you're doing so voluntarily?
      A        Yes, sir.
      •        I'm satisfied this plea is knowingly, intelligently, and voluntarily
               rendered.

       For the first time on appeal, Davis claims the court erred in calculating his

offender score by not finding that his September 2011 convictions for unlawful

possession of a controlled substance with intent to deliver and unlawful possession of a

controlled substance(MDMA8)constituted the same criminal conduct. Because Davis

did not argue at sentencing that these offenses constitute the same criminal conduct,

Davis waived this argument and cannot raise it for the first time on appeal. State v.

Brown, 159 Wn. App. 1, 16-17, 248 P.3d 518(2010); State v. Jackson, 150 Wn. App.

877, 892, 209 P.3d 553(2009); In re Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158

P.3d 588 (2007).




                quotation marks omitted.
       8 Internal

       9 Methylenedioxymethamphetamine, also known as "Ecstasy."



                                              11
No. 76747-0-1/12

Appellate Costs

       Davis asks us to deny appellate costs. Appellate costs are generally awarded to

the substantially prevailing party on review. RAP 14.2. Where, as here, a trial court

makes a finding of indigency, that finding remains throughout review "unless the

commissioner or clerk determines by a preponderance of the evidence that the

offender's financial circumstances have significantly improved since the last

determination of indigency." RAP 14.2. Under RAP 14.2, if the State has evidence

indicating that Davis's financial circumstances have significantly improved since the trial

court's finding, it may file a motion for costs with the commissioner. State v. St. Clare,

198 Wn. App. 371, 382, 393 P.3d 836(2017).

       We affirm.




WE CONCUR:




         cA4)r 4c4r




                                            12
