                                                                                                  FILED
                                                                                         00UF;r   IF
                                                                                                       APPEALS
                                                                                              DI vlw II
                                                   2013 JUL -- 9 A .,
                                                                                                                  10
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                                         HfP, T
                                                                                                            G
                                           DIVISION II                                  By


STATE OF WASHINGTON,                                                   No. 43397 4 II
                                                                                 - -


                              Respondent,

         V.




JAMES LIONEL McCLURE,                                             UNPUBLISHED OPINION




         JOHANSON, A. .
                   J. —
                    C James Lionel McClure appeals his conviction for second degree

unlawful possession of a firearm. He argues that he did not understand the mens rea element of

the crime when he entered an AlfordNewton guilty plea. Because the information advised him
                                   /

of the legal elements of the crime and the factual recitation provided further notice of the

knowledge element, we affirm.
                                                  FACTS


         On February 3, 2009, Wal Mart loss prevention officers observed McClure cutting open
                                  -

packaged merchandise and concealing the merchandise on his person. The officers confronted
McClure outside the store after he exited without        paying   for any items. The officers detained


McClure and "[ uring the scuffle a functional .357 Magnum Revolver, loaded with six rounds"
            d]

fell out of McClure's   pocket. ' Suppl.    Clerk's   Papers (CP) at   37. McClure was arrested and




s
    North Carolina v. Alford, 400 U. .25, 91 S. Ct. 160, 27 L.Ed. 2d 162 (1970);
                                   S                                           State v. Newton,
87 Wn. d 363, 552 P. d 682 (
     2             2       1976).

2 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to
      1                             a   panel   of judges.
No. 43397 4 II
          - -




admitted to possessing the gun; he said he found it in some bushes in Portland." Suppl. CP at

37.


        The State charged McClure with first degree attempted robbery and second degree

unlawful possession of a firearm in violation of RCW 9.1. The information alleged that
                                                     040.
                                                       4
McClure "
        did knowingly own or have in his possession or control a firearm."Suppl. CP at 35.

The State later added charges for bail jumping and third degree retail theft and added a firearm

enhancement to the robbery charge. It did not amend the firearm possession charge.

        On April 11, 2012, McClure entered an Alford/ ewton guilty plea to the unlawful
                                                    N

possession of a.firearm charge. The State dismissed the remaining charges and recommended a

51 month sentence. In his written statement on plea of guilty, McClure acknowledged that he
   -

received the Information. He also wrote, That I James McClure ...
                                         "                                               did knowingly or have [sic]

in my   possession ,or     control       a   firearm to wit      a   pistol." Suppl.   CP at 39.    He additionally

conceded that:


        T]e State has evidence from which a jury could conclude that I had on my
         h
        person   or    possession    a   firearm   or   pistol   on   Feb 3rd 2009 ...     after having been
        previous 1y] convicted of several felonies in Oregon which would make me guilty
                 [
        of the crime of unlawful poss. of a firearm in the second degree.

Suppl. CP at 46. The State submitted a statement of facts on the AlfordNewton plea detailing
                                                                       /
the circumstances leading to McClure's arrest.


3 RCW 9.1.
      a) in part:
      040(    2 provides,
              4 )(
              2)( A person, whether an adult or juvenile, is guilty of the crime of
                a)
     unlawful possession of a firearm in the second degree, if the person does not
      qualify under subsection (1)of this section for the crime of unlawful possession
        of a firearm in the first degree and the person owns, has in his or her possession,
        or has in his or her control any firearm:
                i) After having previously                       been convicted .         of any felony not
        specifically listed as prohibiting firearm possession under subsection (1) .this
                                                                                  of
        section ....


                                                                 2
No. 43397 4 II
          - -




         The trial court accepted McClure's AlfordNewton plea and sentenced him to 55 months
                                                  /

in custody. McClure appeals his conviction.

                                                  ANALYSIS


         McClure argues that the record does not demonstrate that he understood the mens rea

element of unlawful possession of a firearm and, thus, his AlfordNewton plea was involuntary.
                                                                 /

He seeks to withdraw his plea.

                                            I. Standard of Review


         Generally, a defendant waives any issues not raised in the trial court. RAP 2. (But a
                                                                                     a).
                                                                                      5

defendant may raise         alleged "manifest error[s]affecting [ ] constitutional right[
                                                                                        s]" first
                                                                                          for the

time on appeal. RAP 2. ( allegedly involuntary plea is the type of constitutional error
                    a)( An
                     3).
                     5
that   can   be raised for the first time   on   appeal. State v. Walsh, 143 Wn. d 1, 6, 17 P. d 591
                                                                               2             3

2001). " State bears the burden of proving the validity of a guilty plea."State v. Ross, 129
     The

Wn. d 279, 287, 916 P. d 405 (1996).
  2                  2

                                             II. McClure's Plea


         Due process requires that a defendant's guilty plea be knowing, voluntary, and

intelligent."In re Pers. Restraint oflsadore, 151 Wn. d 294, 297, 88 P. d 390 (2004).
                                                    2                 3

         In order for a guilty plea to be accepted' as knowing, intelligent and voluntary, the
         accused must be  apprised of the nature of the charge. At a minimum, "he   t
         defendant would need to be aware of the acts and the requisite state of mind in
         which they must be performed to constitute a crime."

In re Pers. Restraint ofMontoya, 109 Wn. d 270, 278, 744 P. d 340 (1987) citations omitted)
                                       2                  2               (
             State        Holsworth, 93 Wn. d 148,
                                          2                   3                        To obtain a
                                                        153. n. , 607 P. d 845 ( 1980)).
                                                                       2
quoting              v.




conviction for second degree firearm possession, the State has the burden of proving that the

possession was " nowing."
               k        State v. Anderson, 141 Wn. d 357, 364 66,5 P. d 1247 (2000).
                                                 2            -     3

                                                       3
No. 43397 4 II
          - -



       McClure here argues that he did not receive notice of the mens rea element because he

only acknowledged that he "knowingly"possessed or "ha[ ]a[
                                                     d    firearm] in [his] possession or

control" and because the court did not advise McClure of the mens rea element in open court

during his AlfordNewton plea colloquy. Br. of Appellant at 6 7;Suppl. CP at 39. The record
                 /                                           -

shows, however, that McClure was aware of the mens rea required to constitute the crime

because he received a copy of the information containing the mens rea requirement prior to

entering   his   plea. Montoya,       109 Wn. d at 278.
                                            2              The information alleged that McClure "did

knowingly own or have in his possession or control a firearm."Suppl. CP at 35; CP at 2. In his

statement on plea of guilty, McClure acknowledged receiving a copy of the information.

McClure additionally stated that he fully discussed his statement on plea of guilty with his

attorney.   We consequently hold that McClure had notice of the mens rea element before he

entered his AlfordNewton plea. In re Pers. Restraint ofKeene, 95 Wn. d 203,207 08,622 P. d
                   /                                               2           -       2

360 (1980).

       In addition, when he was arrested, McClure admitted that he found the pistol in Portland

and thereafter     possessed    it.   During his plea colloquy, the State presented this evidence in

support of McClure's AlfordNewton plea.
                            /                        This evidence " describe[
                                                                             s]       intentional, .
                                                                                      .     .      as

opposed to accidental"possession of the.
                                       firearm. State v. Osborne, 102 Wn. d 87, 94, 684 P. d
                                                                        2                2

683 (1984).Thus, the State informed McClure of f"acts gathered by the State from which a trier
of fact could    easily find   the   requisite `knowledge. "' Osborne, 102 Wn. d at 94. Accordingly,
                                                                             2

we hold that McClure's Alford/ ewton plea was knowing, intelligent, and voluntary because the
                             N

information advised him of the legal elements of the crime and the factual recitation provided

further notice of the knowledge element. Osborne, 102 Wn. d at 93 94.
                                                        2         -


                                                      11
No. 43397 4 II
          - -



       We affirm.


       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

040,
2.6.it is so ordered.
 0
                                                                              3




                                                                                  0
                                                              Johanson, A. .
                                                                        J.
                                                                         C
We concur:




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