                                                                FILED
                                                             July 19, 2016
                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                         )         No. 33106-7-111
                                             )
                     Respondent,             )
                                             )
              v.                             )         UNPUBLISHED OPINION
                                             )
MATTHEW HENRY DEVORE,                        )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, A.C.J. -We granted Matthew DeVore's request for

discretionary review to determine whether the trial court erred in withdrawing Mr.

DeVore's valid guilty plea and allowing the State to file an amended information. We

conclude that the trial court erred and remand this matter to allow Mr. DeVore to plead

guilty to the original information.

                                         FACTS

       On November 24, 2014, a stabbing occurred at a business in Kennewick,

Washington. At the scene, the police briefed the responding prosecutors and informed

them the suspect, Mr. DeVore, was in custody. Later that day, Sergeant Randy Maynard

called the prosecutors and summarized the statement Mr. DeVore gave the police.
No. 33106-7-III
State v. De Vore


According to Sergeant Maynard, Mr. DeVore admitted he stabbed Thomas Christian but

insisted his contact with Mr. Christian had been inadvertent, and he had been continually

carrying the knife he used to stab Mr. Christian for several weeks.

      On November 26, the police briefed the prosecutors again and included witness

statements that called into question whether Mr. DeVore always carried the knife he used

to stab Mr. Christian. During the briefing, the State decided to charge Mr. DeVore with

second degree murder based on his statement and the autopsy reports, but agreed to

continue investigating whether the stabbing was premeditated. That same day, the State

charged Mr. De Vore with second degree murder with an aggravating circumstance of

impact on others.

      The business where the stabbing occurred gave Sergeant Maynard a video of the

incident, which Sergeant Maynard delivered to the prosecutors after the State filed the

information. The prosecutors watched the video and agreed the video contradicted Mr.

DeVore's statement that his contact with Mr. Christian at the business was inadvertent.

The prosecutors agreed they would likely end up charging Mr. DeVore with first degree

murder based on the increasing evidence of premeditation. The prosecutors decided to

wait to file the amended information until they had additional written statements and

reports, but agreed to file an amended information if Mr. DeVore attempted to plead


                                             2
No.331°06-7-III
State v. De Vore


guilty. On December 3, defense counsel met with Mr. DeVore for several hours, and the

two went over Mr. DeVore's statement on plea of guilty.

       On December 4, the trial court held a hearing to arraign Mr. DeVore. At the

beginning of the hearing, defense counsel stated that Mr. DeVore wished to enter a guilty

plea and handed forward the statement of defendant on plea of guilty. The State then

moved to file an amended information charging Mr. DeVore with first degree murder

with an aggravating circumstance of impact on others. The State and defense counsel

disputed whether Mr. DeVore had entered a valid guilty plea and whether the State could

amend the information at that point. The trial court continued the arraignment so the

parties could brief the issue.

       The trial court held another hearing on December 22. The trial court advised it had

reviewed the relevant case law, including Martin 1 and Ford. 2 The trial court concluded

that, under Ford, the State may not amend an information under CrR 2.l(d) if amending

the information would prejudice the defendant's substantial rights. The trial court found

that continuing the arraignment to obtain legal authority on the question of whether the

State was permitted to amend the information prejudiced Mr. DeVore's substantial right




       1
           State v. Martin, 94 Wn.2d 1,614 P.2d 164 (1980).
       2
           State v. Ford, 125 Wn.2d 919,891 P.2d 712 (1995).

                                             3
No. 33106-7-III
State v. De Vore


to plead guilty at the time of arraignment. The trial court denied the State's motion to

amend the information.

       The trial court then gave Mr. De Vore an opportunity to plead guilty to second

degree murder. The trial court conducted a plea colloquy to determine whether Mr.

DeVore's plea was knowing, intelligent, and voluntary. The trial court then asked Mr.

DeVore to supplement the factual basis for the plea in his own words. Mr. DeVore gave

a verbal description of the incident:

               [Mr. DeVore]: Yes, sir. I never, I never intended to--for what
       happened happen. I was under a lot of duress for some number of months
       and I tried to avoid Mr. Christianson [sic].
               And on the day that-on the 24th, when I went there, I was trying to
       get there early to avoid him. And I did not intend to meet him in any way,
       but rather to avoid him.
               And I was under a lot of, a lot of emotional duress, missing my
       children. And unfortunately I tried to confront him to talk to him about it.
       And, and I don't know what happened, sir, but-just our conversation was
       an ongoing conversation between us that always seemed to go wrong.
               And I just-at that moment, I-something came over me. It was like
       getting hit by a lightning bolt.
               And after it happened, I didn't even really recognize what had
       happened until later. I was in shock, I think, for an entire week ....

               . . . And that moment when I was standing there, I tried to talk to him
       and tell him-I was basically trying to tell him that I wanted to see my kids,
       but unfortunately it came out wrong and I was angry.




                                             4
No. 33106-7-III
State v. De Vore


              And when we started talking, and I felt like he was treating me like a
       dog and told-just bushed [sic] me off and kind of motioned a kick at me
       and-I don't believe for any intent but other than just to belittle me. And
       that was kind of an ongoing thing. And I just, I snapped and I drew my, I
       drew a knife and, and I stabbed him. I attempted to kill him.
              THE COURT: Pardon me?
              [Mr. DeVore]: In a-an attempt to kill him. That is not true.
              THE COURT: Anything else you'd like to say, sir-
              [Mr. DeVore]: No, sir.

Report of Proceedings (RP) at 23-24.

       The State objected to the trial court accepting Mr. DeVore's plea based on that

statement, arguing that Mr. DeVore did not state an adequate factual basis to support the

intent element of second degree murder. The State then argued that the court had

discretion in the interests of justice to not accept Mr. De Vore' s plea.

       The trial court determined that Mr. DeVore's plea was knowing, intelligent, and

voluntary, and also determined Mr. DeVore stated an adequate factual basis for his plea to

second degree murder. The court noted it had some concern whether the entry of Mr.

De Yore's plea served the interests of justice. Defense counsel and the State began to

argue this issue when the trial court declared a recess. There were no further proceedings

that day.




                                               5
No. 33106-7-III
State v. De Vore


       The trial court held another hearing on December 29, 2014. After argument from

the State and defense counsel, the trial court stated it had considered the case significantly

since the previous hearing and determined that its previous ruling, which denied the

State's motion to amend the information, was incorrect in light of Ford. The court ruled

the December 4, 2014 continuance was required in the administration of justice and did

not prejudice Mr. DeVore's substantial rights. The court further ruled that allowing the

State to amend the information would not prejudice Mr. DeVore's mental health, right to

remain silent, or due process rights. Because there was no prejudice to Mr. DeVore, the

court concluded the State should be allowed to amend the information. Defense counsel

advised the court that Mr. DeVore would not enter a plea at that time. The court then

entered a not guilty plea for Mr. DeVore.

       Mr. DeVore filed a notice for discretionary review. This court determined the trial

court's decision constituted probable error and granted discretionary review.

                                        ANALYSIS

      Mr. De Vore argues the trial court erred when it allowed the State to amend the

original information charging him with second degree murder and file an amended

information charging him with first degree murder. He contends he entered a valid guilty




                                              6
No. 33106-7-III
State v. De Vore


plea on December 22, 2014, and therefore the trial court erred when it withdrew that plea

and allowed the State to amend the information. 3

       This court generally reviews the granting of a motion to amend an information for

an abuse of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995).

However, the issue of whether the trial court deprived a defendant of his or her rule-based

right to plead guilty to the original charges is subject to de novo review. State v. Conwell,

141 Wn.2d 901, 906, 10 P.3d 1056 (2000) (quoting State v. Ledenko, 87 Wn. App. 39, 42,

940 P.2d 280 (1997)).

       CrR 2.1 (d) addresses when the State may amend an information. It provides that

"[t]he court may permit any information or bill of particulars to be amended at any time

before verdict or finding if substantial rights of the defendant are not prejudiced." Under

the plain language of CrR 2.l(d), if the trial court had found Mr. DeVore guilty, the State

could no longer amend the information. The trial court never formally found Mr.. DeVore

guilty, so this case is more complicated than a straightforward application of CrR 2.l(d).


      3
         Mr. DeVore's argument is inconsistent as to when he entered a valid guilty plea.
There are instances where he argues he entered a valid guilty plea at the December 22,
2014 hearing. There are other instances where he argues he entered a valid guilty plea on
December 4, 2014. These inconsistencies are likely due to the fact that Mr. DeVore's
appellate brief reuses substantial portions of the briefs he filed after the December 4
hearing, when the trial court asked for briefing on whether Mr. DeVore had entered a
valid plea. We analyze the issues in light of the December 22 hearing.

                                             7
No. 33106-7-III
State v. De Vore


The trial court, however, conducted a full plea colloquy, found Mr. DeYore's plea was

knowing, voluntary, and intelligent, and also found an adequate factual basis supported

the plea.

       The question of whether the State was allowed to amend the information is related

to Mr. DeVore's right to plead guilty. Whether the trial court violated Mr. DeYore's right

to plead guilty depends on whether CrR 4.2( d) was satisfied. That rule provides in

relevant part:

       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.

CrR 4.2(d). Therefore, we first address whether an adequate factual basis supported Mr.

DeYore's plea. We then address whether the trial court violated Mr. DeYore's right to

plead guilty. If the trial court violated Mr. DeVore's right to plead guilty, then the trial

court abused its discretion when it later allowed the State to amend the information.

       A.        FACTUAL BASIS FOR PLEA

       The State argues Mr. DeVore's plea was invalid because it was not supported by

an adequate factual basis. CrR 4.2(d)'s factual basis requirement is satisfied if there is

sufficient evidence from which a jury could conclude the defendant is guilty. State v.



                                              8
No. 33106-7-III
State v. De Vore


Rhode, 56 Wn. App. 69, 72, 782 P.2d 567 (1989). The trial court does not need to be

convinced of a defendant's guilt beyond a reasonable doubt. Id.

           A person is guilty of second degree murder when, "[w ]ith intent to cause the death

of another person but without premeditation, he or she causes the death of such person or

of a third person." RCW 9A.32.050(l)(a) (emphasis added). "A person acts with intent

or intentionally when he or she acts with the objective or purpose to accomplish a result

which constitutes a crime." RCW 9A.08.010(l)(a). Therefore, to satisfy the intent

element, Mr. DeVore had to act with the objective or purpose to cause Mr. Christian's

death. 4

           The State relies on State v. Powell, 29 Wn. App. 163, 627 P.2d 1337 (1981). In

Powell, the trial court never asked the defendant to describe what he did to the victim or

with what intent he acted, but merely asked the defendant questions regarding his

understanding of the statement on plea of guilty and the authenticity of his signature. Id.

at 164. The defendant's written statement on plea of guilty only stated, "' I did participate

in the 1 [degree] murder of [the victim]."' Id. at 165 (first alteration in original). The


           4
         Mr. DeVore argues that for there to be a factual basis for his guilty plea, he only
needed to intend to stab Mr. Christian, but he did not specifically have to intend for Mr.
Christian to die. The second degree murder statute refutes this argument, which
requires the person to act "[w ]ith intent to cause the death of another person."
RCW 9A.32.050(l)(a) (emphasis added).

                                                9
No. 33106-7-III
State v. De Vore


Powell court held there was insufficient evidence to support the factual basis for the plea

because "no attempt was made to orally elicit a description of either defendant's acts or

state of mind," and the legal conclusion in the defendant's written statement failed "to set

forth any of the elements from which a jury could have found defendant guilty of first

degree murder." Id. at 167 (emphasis added).

       The State also relies on In re Personal Restraint of Taylor, 31 Wn. App. 254, 640

P.2d 737 (1982). The only factual basis in the record to support Bruce Taylor's guilty

plea was his written statement, "' I was directly involved in the planning, carrying out the

plan, and aftermath of the murder of Myrtle Boston, which occurred July 4, 1977."' Id.

at 259. The Taylor court concluded this written statement was analogous to the one in

Powell and failed to set out the elements of first degree murder. Id. at 259-60.

       Here, unlike in Powell and Taylor, the trial court asked Mr. DeVore at the

December 22 plea colloquy to describe the facts supporting his plea. The trial court

found Mr. DeVore's description established an adequate factual basis for the plea and

later confirmed this ruling in its conclusions oflaw.

      The State argues there was an inadequate factual basis for Mr. DeVore's plea

because Mr. DeVore denied that he intended to kill Mr. Christian when he said:"' And I

just-at that moment, I-something came over me. It was like getting hit by a lightning



                                             10
No. 33106-7-III
State v. De Vore


bolt. And after it happened, I didn't even really recognize what had happened until

later."' Br. ofResp't at 10 (quoting RP at 23). However, this statement does not

contradict the trial court's finding that Mr. De Vore acted with the objective or purpose to

accomplish Mr. Christian's death, as RCW 9A.08.0IO(l)(a) requires. Right after this

statement, Mr. DeVore said: "And I just, I snapped and I drew my, I drew a knife and,

and I stabbed him. I attempted to kill him." RP at 24 (emphasis added). Mr. DeVore's

statement that he "attempted to kill" Mr. Christian supports the intent element of second

degree murder.

        Unlike the defendants' written statements in Powell and Taylor, which only

contained legal conclusions, Mr. DeYore's oral statement sets out the elements from

which a jury could have found him guilty of second degree murder. Although his

statement may not have establi~hed guilt beyond a reasonable doubt, there is sufficient

evidence for a jury to conclude he was guilty. 5 An adequate factual basis supported his

plea.




        5
         The State does not explicitly discuss Mr. DeYore's comment that occurred at the
end of his statement to the court, where he vaguely denied an intent to kill. But even had
the State discussed Mr. DeVore's vague denial, Mr. DeVore's statement immediately
prior-where he clearly admitted his intent to kill-is sufficient for us to affirm the trial
court's finding that Mr. DeYore's plea had a sufficient factual basis and was knowingly,

                                             11
No. 33106-7-III
State v. De Vore


       B.     RIGHT TO PLEAD GUILTY


       In Washington, CrR 4.2(a) gives criminal defendants the right to plead guilty.

State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). But the trial court is not required to

immediately and automatically accept a proffered guilty plea. See State v. Ford, 125

Wn.2d 919, 924, 891 P.2d 712 (1995). Rather, a trial court's acceptance of the guilty plea

is "explicitly contingent on the trial court's independent evaluation of voluntariness." Id.

       Mr. De Vore relies on State v. Rhode, 56 Wn. App. 69 and State v. Conwell, 141

Wn.2d 901. In Rhode, the State and Tanya Rhode negotiated a plea agreement. Rhode,

56 Wn. App. at 70. At the plea hearing, the trial court acknowledged Ms. Rhode's plea

was knowing, intelligent, and voluntary, acknowledged she was informed of the nature of

the charge and the consequences of the plea, and acknowledged there was a factual basis

for the plea. Id. at 71. The trial court then accepted M~. Rhode's plea. Id. At

sentencing, the trial court believed the State's recommendation was too low, so it

reversed its order accepting the plea. Id. at 72. The Rhode court held the trial court

"erred by withdrawing its acceptance of the plea which it earlier found to be factually

based and knowingly, intelligently and voluntarily made." Id. at 73.




intelligently, and voluntarily made.

                                             12
No. 33106-7-111
State v. DeVore


       In Conwell, the State and Jeremy Conwell negotiated a plea agreement and Mr.

Conwell proffered a guilty plea at his arraignment. Conwell, 141 Wn.2d at 904. The trial

court inquired as to Mr. Conwell's competence, his understanding of the charges and

consequences of a guilty plea, and the voluntariness of his plea. Id. After a short

continuance, the trial court determined there was an adequate factual basis to support the

plea. Id. at 904-05. However, the trial court then rejected both the plea agreement and

the proffered plea because it was concerned about Mr. Conwell's justification for using a

weapon. Id. at 905. The trial court then arraigned Mr. Conwell and entered a not guilty

plea sua sponte. Id. Several weeks later, the State moved to amend the information and

Mr. Conwell objected, arguing that he should have been allowed to plead guilty to the

charges in the original information. Id. The trial court allowed the amendment. Id. at

905-06.

       The Conwell court held the trial court failed to comply with CrR 4.2(f). Id. at 908.

The court noted the trial court rejected Mr. Conwell's proffered plea in the interests of

justice, and stated, "While the court has the discretion to reject a plea agreement it finds

inconsistent with the interests of justice, the court does not have discretion to reject a

valid guilty plea offered notwithstanding that agreement." Id. at 909 (emphasis added).

The Conwell court also stated, "' It is up to the defendant to withdraw the plea, not the


                                              13
No. 33106-7-III
State v. De Vore


court."' Id. (quoting Rhode, 56 Wn. App. at 73). Accordingly, CrR 4.2(f) required the

trial court to give Mr. Conwell the choice of withdrawing his guilty plea or pleading to

the charges without a plea agreement. Conwell, 141 Wn.2d at 910. The court noted Mr.

Conwell had the right to plead unconditionally to the original charges, and held the trial

court erred when it entered a not guilty plea sua sponte without Mr. Conwell's assent. Id.

at 909. The court vacated the trial court's order amending the original information and

remanded for Mr. Conwell to enter a plea to the original charges. Id. at 910.

       In contrast, the State relies on Ford. In Ford, the State charged Mr. Ford with

three counts of first degree murder and at the arraignment Mr. Ford, through counsel,

proffered a guilty plea. Ford, 125 Wn.2d at 921. The State immediately moved to

continue the arraignment, stating it possessed potentially exculpatory material it needed to

disclose prior to any plea. Id. The court continued the arraignment proceeding for a

week and did not accept the proffered guilty plea. Id. During the following week, the

State discovered inculpatory evidence and moved to amend the charge to aggravated first

degree murder. Id. The trial court allowed the amendment. Id.

       The Ford court held the continuance was not a violation of Mr. Ford's right to

plead guilty. Id. at 925. The court reasoned CrR 4.2(d) obligates the trial court to be

independently satisfied of the voluntariness and factual basis for the plea, and the trial


                                              14
No. 33106-7-111
State v. De Vore


court continued Mr. Ford's arraignment based in part on a concern the proffered guilty

plea was not knowing, intelligent, or voluntary, as well as a concern that Mr. Ford had a

right to review the exculpatory material. Id. at 924-25.

       Ford also held the trial court properly allowed the State to amend the information.

Id. at 928-29. CrR 2.l(d)'s temporal limitation that requires the State to amend the

information before verdict or finding was not relevant, so the court turned to the question

of whether allowing the State to amend the information would prejudice Mr. Ford's

substantial rights. Id. at 928. The court found that allowing the State to amend the

information would not prejudice Mr. Ford's substantial rights, reasoning that ER 410

prohibited the State from using any evidence of Mr. Ford's proffered plea in any

subsequent trial. Id. at 928. Importantly, the court also reasoned Mr. Ford was not

prejudiced because it had "already determined that the Martin right to plead guilty was

not violated." Id.

       Here, the trial court conducted an extensive plea colloquy during the December 22,

2014 hearing. In the colloquy, Mr. DeVore acknowledged all the constitutional rights he

waived. He acknowledged he understood the elements of second degree murder, his

standard range sentence, and the maximum penalty of life imprisonment. He also

acknowledged he reviewed his statement on plea of guilty with defense counsel and


                                             15
No. 33106-7-III
State v. De Vore


understood its contents, stated no one made threats or promises to get him to plead guilty,

and stated he understood the court was not bound by the standard range. In light of this

colloquy, the court found that Mr. DeVore's plea was knowing, intelligent, and voluntary.

The trial court later confirmed this finding in its conclusions of law.

       This case is like Conwell and unlike Ford. In Ford, the trial court continued the

arraignment because it was concerned Mr. Ford's proffered guilty plea was not knowing,

intelligent, or voluntary, and was also concerned about Mr. Ford's right to review the

exculpatory material. Because the trial court had not yet determined Mr. Ford's plea was

voluntary, CrR 4.2( d) prohibited the trial court from accepting the plea. Because the trial

court could not accept the plea, it did not err when it continued the arraignment and then

allowed the State to amend the information.

       In this case, however, the trial court found that Mr. DeYore's plea was knowing,

intelligent, and voluntary, and also found that an adequate factual basis supported the

plea. CrR 4.2( d) was satisfied. Under Conwell, the trial court had no discretion to reject

Mr. De Yore's guilty plea. Moreover, because Mr. DeYore's plea was not pursuant to a

plea agreement with the State, the trial court also did not have discretion to reject the plea

in the interests of justice. Like in Conwell, Mr. DeVore "had the right to plead

unconditionally" and the trial court did not have authority to enter a plea of not guilty sua


                                              16
No. 33106-7-III
State v. De Vore


sponte. See Conwell, 141 Wn.2d at 909. Therefore, the trial court violated Mr. DeVore's

right to plead guilty.

       The Ford court held that allowing the State to amend the information would not

prejudice Mr. Ford's substantial rights because it had "already determined that the Martin

right to plead guilty was not violated." Ford, 125 Wn.2d at 928. Here, the trial court

violated Mr. DeVore's right to plead guilty, thus prejudicing Mr. DeVore's substantial

rights. We conclude the trial court abused its discretion when it allowed the State to file

an amended information charging Mr. De Vore with first degree murder. We, therefore,

reverse the trial court and remand to allow Mr. DeVore to enter a plea to the original

charge of second degree murder.

       Reversed and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:
                                                                               j

   ?-;dh;u;
   doway, J.             '7J J-
                              I      •


                                          Pennell, J.

                                             17
