          IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 75035-6-1
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HOKESHINA LEE TOLBERT,                          UNPUBLISHED OPINION                 —
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                      Appellant.                FILED: June 13, 2016                          IX •>> O
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          Leach, J. — Hokeshina Lee Tolbert appeals his conviction of murder in tfi§ ^^

second degree after the trial court denied his request to withdraw his guilty plea.

Tolbert challenges the voluntariness of his plea. He claims that he did not have

adequate knowledge about how his actions related to accomplice liability.       He

also claims that the trial court should have ordered a competency hearing.

Finally, he argues that the trial court should not have accepted his guilty plea

because sufficient facts did not support that a jury could find him guilty of the

crime charged.     Because the record shows that he entered into his guilty plea

voluntarily, knowingly, and intelligently, because Tolbert failed to provide

substantial evidence of incompetency, and because sufficient facts support the

trial court's acceptance of his guilty plea based on his accomplice liability, we

affirm.
No. 75035-6-1/2




                                    Background

       On May 10, 2008, Michael Mee was involved in a fight at a barbeque at a

residence in Tacoma. Mee left the scene in a car with several people and drove

to another residence.


       When Mee arrived, he went into the house and came out with several

people including Tolbert, who was carrying a rifle. Tolbert gave the rifle to Mee.

Mee got into in the front passenger seat of a vehicle parked in front of the

residence. Tolbert got into the car Mee had arrived in. Both vehicles went back

to the barbeque. Mee fired two rounds from the rifle at people standing in the

yard of the residence. One struck Tracy Steele in the torso, killing him.

       Tolbert told police that "they" had given Mee the rifle, that he knew the rifle

would be used to shoot someone, that he followed Mee to the shooting, and that

he retrieved the rifle from Mee after the shooting.

       The State charged Tolbert, then 16 years old, as an adult,1 with one count

of first degree murder under accomplice liability and one count of unlawful

possession of a firearm in the second degree. On the order for omnibus hearing,

the box stating "Defendant needs a competency examination" is checked. The

trial court discussed this with Tolbert's counsel at the omnibus hearing. Counsel

stated that he did not know why the box was checked. Tolbert entered into a

plea agreement for one count of murder in the second degree in exchange for

testifying against others involved in the crime. Tolbert pleaded guilty to the


        See RCW 13.04.030(1 )(e)(v)(A).
No. 75035-6-1 / 3




amended information on January 29, 2009. Paragraph 11 of his plea agreement

read,

        On May 10, 2008 in Pierce Co. Washington Michael Mee came to
        my cousin's house and asked for a gun. I went and got a 30-30
        rifle from the garage. Michael Mee took the gun and went to the
        residence where Tracy Steele was at. I was in a car following
        another car Michael Mee was riding in. I watched Michael Mee fire
        two shots at the house. Tracy Steele was hit by the bullets and
        died. Jesus Cota Ancheta was driving the car Michael Mee fired
        the shots from. I knew Michael Mee was going to use the gun to
        shoot someone.

        During the plea hearing on January 28, 2009, the trial court conducted a

colloquy with Tolbert.        Among    other things,    the court described the

consequences of pleading guilty. Tolbert told the trial court that he had reviewed

the statement on plea of guilty and the plea agreement with his attorney and that

he understood the consequences listed in it, including his waiver of his rights to

jury trial and to testify in his own defense. The trial court informed him of the

maximum sentence possible for conviction of second degree murder.            Tolbert

acknowledged the terms of his plea agreement.           The trial court specifically

questioned Tolbert about paragraph 11 of his plea statement, and Tolbert

confirmed the accuracy of his statement about the events constituting the crime.

Tolbert agreed that the trial court had no reason to hesitate to accept his plea.

        On March 18, 2009, Tolbert, acting pro se, filed a declaration stating, "I've

been trying to get ahold of my lawyer to tell him I want to withdraw my plea

bargain but he don't return or answer my calls." He wrote that his lawyer had

misled him about the number of years he would be sentenced, that his lawyer
No. 75035-6-1/4




forced him to take the deal by not communicating with him, and that he was

coerced into making statements on July 1, 2008.         He also requested a new

attorney in a declaration filed on October 7, 2009, saying that his attorney had

failed to schedule him an incompetency hearing. The trial court did not act on

these declarations.


      At sentencing on March 12, 2010, the State reduced its sentencing

recommendation from 220 months of incarceration to 150 months because


Tolbert fulfilled his plea agreement by testifying in the other trials.     Tolbert's

mother testified to some of the difficulties Tolbert experienced, including attention

deficit hyperactivity disorder and posttraumatic stress disorder. The trial court

recognized that Tolbert's "credible and forthright" testimony helped the State

convict Mee. The trial court imposed a 150-month sentence. Tolbert did not ask

to withdraw his plea during the hearing.

       Tolbert filed a notice of appeal on November 10, 2014. On November 12,

Tolbert filed a motion to extend time to file notice of appeal. On February 23,

2015, Division Two of this court granted the motion because "the Plea

Agreement and Statement on Plea of Guilty did not waive all of Tolbert's appeal

rights and because the trial court did not advise him of any remaining appeal

rights during the sentencing hearing."
No. 75035-6-1 / 5




                                      Analysis

       Tolbert asks this court to allow him to withdraw his guilty plea. We review

a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion.2

       CrR 4.2(f) requires that a court "allow a defendant to withdraw the

defendant's plea of guilty whenever it appears that the withdrawal is necessary to

correct a manifest injustice." A manifest injustice occurs when a defendant's plea

was involuntary.3 "It is reversible error for a trial court to accept a guilty plea

without an affirmative showing in the record that the plea was made intelligently

and voluntarily."4

       Tolbert argues that his guilty plea is invalid because it was not voluntary,

knowing, or intelligent. Primarily, Tolbert claims that his plea was not knowing.

Due process requires that the defendant pleading guilty understand the elements

of the crime charged and how those elements relate to the facts alleged.5 To

meet the minimum requirements for constitutional due process, a "'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.'"6




       2 State v. Williams, 117 Wn. App. 390, 398, 71 P.3d 686 (2003).
      3 State v.Wakefield, 130 Wn.2d 464, 472, 925 P.2d 183, affd, 130 Wn.2d
464, 925P.2d 183(1996).
      4 State v. King, 130 Wn.2d 517, 530, 925 P.2d 606 (1996).
      5 In re Pers. Restraint of Hews, 99 Wn.2d 80, 87, 660 P.2d 263 (1983)
(Hews I) (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166,
22 L Ed. 2d 418 (1969)).
      6 State v. Osborne, 102 Wn.2d 87, 93, 684 P.2d 683 (1984) (quoting In re
Pers. Restraint of Keene, 95 Wn.2d 203, 207, 622 P.2d 360 (1980)).
No. 75035-6-1 / 6




        Tolbert contends that he did not understand the nature of the charge

against him because the statement of defendant on plea of guilty did not explain

the legal meaning of accomplice, nor did it state that Tolbert knew at the time he

got the gun that Mee would use it to kill Steele. He argues that his statement

does not make clear what he heard Mee say, whom he got the gun for, or when

he first learned that Mee planned to use the gun to shoot someone. He argues

that because the timing of this knowledge matters to his accomplice liability,7

failure to communicate this to him constituted error. Tolbert also argues that the

circumstances of his age and background should weigh against the validity of the

plea.

        To establish accomplice liability, the State had to prove that Tolbert aided

or agreed to aid a person in planning or committing a crime with knowledge that it

would promote or facilitate the commission of the crime.8 The State had to prove

Tolbert's knowledge of the specific crime charged rather than knowledge of a

different crime or generalized knowledge of criminal activity.9

        Here, the trial court confirmed at Tolbert's plea hearing that he understood

his "role in this was providing the rifle that became the murder weapon." Tolbert


      7 See Rosemond v. United States,    U.S.    , 134 S. Ct. 1240, 1251,
188 L. Ed. 2d 248 (2014) (A defendant charged with aiding and abetting an
armed drug sale who learns of a gun only after he may reasonably walk away
does not have the requisite intent to bring about an armed drug sale.).
      8 RCW 9A.08.020(3)(a)(ii) provides, "A person is an accomplice of another
person in the commission of a crime if: (a) With knowledge that it will promote or
facilitate the commission of the crime, he or she . . . (ii) Aids or agrees to aid
such other person in planning or committing it."
        9 State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000).


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No. 75035-6-1 / 7




signed the plea agreement with the State outlining his obligations and the

benefits he received because he pleaded guilty.      He signed the statement on

plea of guilty, which also incorporated a declaration for a determination on

probable cause, establishing the factual basis for his plea.       That document

showed that Tolbert had received a copy of the amended information reflecting

the reduction in charges. The amended information included the prosecutor's

statement, "The defendant is an accomplice to the murder.          The defendant

provided the firearm used to kill the victim (Tracy Steele) with knowledge that the

firearm would be used in a drive-by scenario." When the State provides the

defendant with an information notifying him of the nature of the crime, this

creates a presumption that the defendant entered into the plea knowingly.10 And

Tolbert's attorney stated at the hearing that he had reviewed the plea agreement

and the statement on plea of guilty with Tolbert. The record shows that Tolbert

was aware of the charges against him, how his actions related to those charges,

and the benefits he gained by taking the plea agreement. We conclude Tolbert

knowingly pleaded guilty.

       Tolbert also argues that "youth and lack of education make it even more

likely that he did not understand the legal requirements as they related to the

facts." He faults the trial court for not engaging in a more specific colloquy with

him to ensure his understanding of the rights he relinquished by pleading guilty.



      10 In re Pers. Restraint of Hews, 108 Wn.2d 579, 595-96, 741 P.2d 983
(1987) (Hews II).


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No. 75035-6-1 / 8




But he cites no authority requiring this court to give weight to these factors in this

context without demonstrating some further incompetency. We thus decline to

do so.


         We also conclude that Tolbert voluntarily and intelligently entered into his

guilty plea. A plea is voluntary when a defendant understands the "nature and

extent of the constitutional protections waived by pleading guilty."11 A strong

presumption exists that a plea is voluntary when a defendant reads, understands,

and signs a plea statement.12 And where a trial court inquires about a specific

matter of the plea statement, the presumption that the plea is voluntary is "well

nigh irrefutable."13 Here, the trial court engaged in a colloquy with Tolbert at his

plea hearing and confirmed that he was aware that by pleading guilty he would

give up his right to trial, to question witnesses, to a presumption of innocence,

and to appeal a resulting conviction. The record supports that Tolbert was aware

of the rights he relinquished and that the guilty plea was voluntary.

         And a guilty plea is intelligent where the defendant is informed of all of the

direct consequences of pleading guilty.14 The plea agreement and statement on

plea of guilty both outlined the sentencing consequences of Tolbert's plea and

stated that his sentencing range would be from 123 to 220 months.15 Tolbert's

attorney stated at the hearing that Tolbert "understands the State is going to, in

       11   Hews I, 99Wn.2dat87.
       12   State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
       13   State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982).
       14   In re Pers. Restraint of Isadore, 151 Wn.2d 294, 300, 88 P.3d 390
(2004).
         15 See Isadore, 151 Wn.2d at 297-98.


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No. 75035-6-1 / 9




exchange for a reduction to Murder 2, recommend 220 months," that he is

pleading to a strike offense, and that if Tolbert breaks the agreement then he will

be charged with first degree murder.        The trial court confirmed that Tolbert

understood the maximum penalty for the crime, the standard sentencing range,

community custody consequences, and that a strike offense means that if he

were convicted of three of these kinds of offenses he would be subject to life in

prison without parole.      The record supports that Tolbert's guilty plea was

intelligent.

        Because the record affirmatively shows that Tolbert made a voluntary,

knowing, and intelligent plea, the trial court did not err in concluding the same

and accepting his guilty plea.

        Tolbert next argues that his plea is invalid because the trial court accepted

it before resolving the issue of his competency. He argues the order on omnibus

hearing, with a box checked that the "[defendant needs a competency hearing,"

required the court to inquire into his competency, and it erred when it failed to do

so at his plea hearing. He also claims that the trial court should have considered

Tolbert's competency after he entered into a guilty plea when his mother told the

court about Tolbert's struggles with mental health issues. He also claims that his

two pro se declarations called his competency into question.

        A defendant must be competent in order to enter into a valid guilty plea.16

In reviewing Tolbert's competency hearing challenge, we look to see if "'the plea


        16 RCW 10.77.050.
No. 75035-6-1/10




represents a voluntary and intelligent choice among the alternative courses of

action open to the defendant.'"17 A trial court has broad discretion to judge the

mental competency of a defendant to plead guilty.18 A trial court may consider

several factors to determine if it needs to inquire formally into a defendant's

competency, including the "'defendant's appearance, demeanor, conduct,

personal and family history, past behavior, medical and psychiatric reports and

the statements of counsel.'"19

        A defendant must present substantial evidence to raise adequately a

legitimate question of competency, requiring the court to order a competency

hearing.20 When a defendant fails to do this, a trial court need not hold a

competency hearing.21 The State argues that Tolbert never raised a legitimate

question of his competence because he did not produce substantial evidence to

raise a legitimate question of incompetency. We agree.

        First, during the omnibus hearing, the trial court addressed the checked

box on the omnibus hearing form and determined that no request had been

made.


              [DEFENSE COUNSEL]: Your honor, in the Omnibus Order
        that's been prepared by [another defense counsel], it indicates that


        17 Osborne, 102 Wn.2d at 98 (quoting North Carolina v. Alford, 400 U.S.
25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)).
        18 Osborne, 102 Wn.2d at 98 (quoting State v. Loux, 24 Wn. App. 545,
548, 604P.2d 177(1979)).
      19 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610
(2001) (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)).
        20 State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010).
        21 DeClue, 157 Wn. App. at 793.


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No. 75035-6-1 /11


       there may be a competency examination, and I don't know what he
       means by that.

              THE COURT:        Well, that's kind of an unusual situation to
       have floating around, I would think. Do you have knowledge about
       this Mr. [Prosecutor]?

               [PROSECUTOR]: No, sir.

             THE COURT: Okay. I am going to assume that [another
       defense attorney] is just covering his bases. At the moment, you
       have no indication that there's a request for a competency
       evaluation at this point?

               [DEFENSE COUNSEL]: No, I do not.

At the hearing, Tolbert's counsel thus expressly withdrew any request otherwise

indicated by the checked box. Tolbert did not raise the issue of competency at

any other point before he entered into his plea.

       Nor did Tolbert present substantial evidence of his incompetency after he

pleaded guilty. Neither his declaration claiming he had been coerced into making

the plea nor his request for new counsel stating that he had asked counsel to

schedule him a competency hearing               requires that the trial court find

incompetence when the trial court had also been able to observe his competent

testimony elsewhere.

       We conclude that the trial court acted well within its discretion to

determine that Tolbert was competent to enter into a voluntary, knowing, and

intelligent plea.

       Finally, Tolbert argues that an insufficient factual basis existed for the trial

court to accept his guilty plea because Tolbert pleaded to second degree murder




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No. 75035-6-1/12




requiring specific intent when the State charged Mee, the principal actor, with a

general intent crime of first degree murder by extreme indifference.

       To accept a guilty plea there must be evidence sufficient for a jury to find

guilt, but the trial court does not need to conclude beyond a reasonable doubt

that the defendant is guilty.22 Thus, in this case, for the trial court to accept the

plea, the record had to demonstrate sufficient evidence to show that a jury could

find that Tolbert had knowledge that he was aiding in the commission of the

crime for which Mee was charged.23

       Tolbert argues that a jury could not find him guilty of accomplice liability

because that would require it to find that he had knowledge of Mee's crime.

Tolbert argues that because the State charged Mee with first degree murder by

extreme indifference, a crime that does not require proof of "specific intent to

murder Mr. Steele, it is logically impossible for Tolbert to have had the knowledge

that producing the gun from the garage would facilitate that murder, as required

for accomplice liability."24 Tolbert cites State v. Dunbar25 in support of this

argument. There, the Washington Supreme Court held that because the crime of

attempt requires that a defendant act with the intent to accomplish a specific

criminal result, "in order to serve as a basis for the crime of attempt, a crime


       22 State v. Bao Sheng Zhao, 157 Wn.2d 188, 198, 137 P.3d 835 (2006).
       23 See RCW 9A.08.020(3)(a)(ii); see also Cronin, 142 Wn.2d at 578-79.
       24 RCW 9A.32.030(1)(b) provides, "(1) A person is guilty of murder in the
first degree when: ...(b) Under circumstances manifesting an extreme
indifference to human life, he or she engages in conduct which creates a grave
risk of death to any person, and thereby causes the death of a person."
       25 117 Wn.2d 587, 817 P.2d 1360 (1991).


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No. 75035-6-1/13




defined by a particular result must include the intent to accomplish that criminal

result as an element."26

         But in State v. Guzman,27 Division Three of this court distinguished the

intent required for attempted murder in Dunbar from that required for accomplice

liability.     The Guzman court concluded that facts need only show that an

accomplice to first degree murder by extreme indifference knew that his actions,

along with those of the principal, were extremely dangerous and yet he was

indifferent to the consequences.28 Thus, the State need only prove that Mee "'(1)

acted with extreme indifference, an aggravated form of recklessness, which (2)

created a grave risk ofdeath to others, and (3) caused the death ofa person.'"29

         Tolbert attempts to distinguish Guzman, arguing that here Tolbert pleaded

guilty to the different, specific intent crime of second degree murder rather than

to first degree murder by extreme indifference. But his argument asks this court

to overlook that the State originally charged Tolbert with accomplice liability to

Mee's crime of first degree murder by extreme indifference. Because the factual

basis requirement is intended to ensure voluntariness, where a factual basis

exists for an original charge, "a defendant can plead guilty to amended charges

for which there is no factual basis, but onlv if the record establishes that the



             26 Dunbar, 117 Wn.2d at 589-90.
             27 98 Wn. App. 638, 645-46, 990 P.2d 464 (1999).
             28 Guzman, 98 Wn. App. at 646.
             29 State v. Henderson, 180 Wn. App. 138, 145, 321 P.3d 298 (2014)
(quoting State v. Yarbrough, 151 Wn. App. 66, 82, 210 P.3d 1029 (2009)), affd,
182 Wn.2d 734, 344 P.3d 1207 (2015).


                                              -13-
No. 75035-6-1/14




defendant did so knowingly and voluntarily."30 Thus, under Guzman, acceptance

of Tolbert's guilty plea required the trial court to conclude by sufficient evidence

that a jury could find that Tolbert knew that his actions and those of Mee were

extremely dangerous but that Tolbert was indifferent to the consequences.

       Here, Tolbert admitted that he handed Mee the rifle, knowing Mee would

use it to shoot someone.      He accompanied Mee to the barbeque where he

witnessed Mee shoot into a crowd and hit Steele with a bullet. Tolbert then left

with Mee and accepted the gun back after the event. Because a jury could rely

on this evidence to find that Tolbert had knowledge that when he provided Mee

the gun that Mee would use it to shoot another person, the trial court did not err

when it entered judgment and sentence on Tolbert's guilty plea.

                                    Conclusion


       The record establishes that Tolbert entered into his guilty plea voluntarily,

knowingly, and intelligently. The trial court did not abuse its discretion when it

found that Tolbert was competent to plead guilty. Finally, the record includes

sufficient facts to show that a jury could have convicted Tolbert of accomplice




       30 Bao Sheng Zhao, 157 Wn.2d at 200.


                                        -14-
No. 75035-6-1/15




liability for murder. Thus, the trial court did not err when it accepted Tolbert's

guilty plea, and no manifest injustice warrants its withdrawal. We affirm.




WE CONCUR:




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