    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON ,
                                                       No. 69313-1-1
                    Respondent,
                                                       DIVISION ONE              _        coo
             v.

                                                       UNPUBLISHED OPINION^ rn<=>
ANDRE EDWARD STEWART,
                                                                                     CO

                    Appellant.                )        FILED: April 28,2014
                                                                                     5
                                                                                            3 en
                                                                                      c5
      Appelwick, J. — Stewart appeals his conviction for assault in the third deTjtee.v

He argues that his guilty plea was not voluntary, because it did not include the element

of criminal negligence. We affirm.

                                         FACTS


      On August 26, 2007, Andre Stewart got into a dispute with his then girlfriend,

Christina Evans. The next day Evans called the police to help her get her belongings

out of the apartment. When police arrived to assist, she reported that the previous day

Stewart had grabbed her and thrown her to the ground. She also reported that she was

not injured. The officer took statements, but made no arrests. A week later, Evans

called the police to report that she had been suffering pain since Stewart had thrown her

to the ground. She had returned to the hospital where it was discovered via x-rays that

she had a broken rib. However, according to the affidavit of probable cause, medical

records indicated that the there was no evidence of a fracture or a break in the x-rays.

      The State charged Stewart with assault in the third degree - domestic violence

under RCW 9A.36.031(1)(f). The statute provides that a person is guilty of assault in

the third degree if, with criminal negligence, he causes bodily harm accompanied by
No. 69313-1-1/2




substantial pain that extends for a period sufficient to cause considerable suffering.

RCW9A.36.031(1)(f).

       Stewart pleaded guilty as charged. Stewart was sentenced on May 12, 2008.

                                       DISCUSSION


       Stewart argues that his guilty plea was not voluntary, because it did not include

all elements of the crime charged.1       Specifically, he asserts that his plea did not

demonstrate understanding that, to be guilty of the crime, he must have acted with

criminal negligence. He further argues that the court erred in determining that a factual

basis existed for his plea.

       The Constitution requires that a defendant entering a voluntary guilty plea be

aware (1) that he is waiving his rights to remain silent, to confront his accusers, and to a

jury trial; (2) of the essential elements of the crime with which he is charged; and (3) of

the direct consequences of pleading guilty. In re Pers. Restraint of Hilvard. 39 Wn. App.

723, 727, 695 P.2d 596 (1985). Under CrR 4.2(d), a trial court must be satisfied that

there is a factual basis for a defendant's guilty plea. This is a procedural requirement

that is not constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d

1228 (1996). The trial court is not limited to the defendant's statement, but may look to

any reliable source to determine that there is a factual basis for a guilty plea. In re Pers.

Restraint of Fuamaila, 131 Wn. App. 908, 924, 131 P.3d 318 (2006).

       Stewart's statement in his own words does not alone indicate his awareness of

criminal negligence as an element of the crime. But, his plea also reads that "I have

       1 The State asks that we refuse to address this issue, because Stewart raises it
for the first time on appeal. RAP 2.5(a) grants us discretion to refuse to review any
claim of error not raised in the trial court. We decline to do so here.
No. 69313-1-1/3



been informed and fully understand that... I am charged with the crime(s) of Assault

Third Degree [sic]. The elements of this crime(s) are set forth in the information . . .

which is incorporated by reference and which I have reviewed with my lawyer." (Some

capitalization omitted.) The information includes all elements of the crime, including

criminal negligence. Stewart's plea was not facially invalid.

       Furthermore, during the plea hearing, the court asked Stewart, "You're going

forward with this plea today to the charge of Assault in the Third Degree. Your attorney

has indicated you do understand the elements of the offense. Is that correct?" Stewart

replied, "Yes." The court also read Stewart's statement to him and asked if it was true,

to which Stewart replied, "Yeah." His statement in his own words read, "That on 26

August 2007, in King County Washington, did [sic] cause bodily harm accompanied by

substantial pain that did extend for a period sufficient to cause considerable suffering to

Christina Evans." The court properly conducted a colloquy and determined that there

was a factual basis for Stewart's plea.

      We affirm.




WE CONCUR:
