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                                                                                                   COURT OF APPEALS
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                                                                                                  2013 MAR 26   AN 9:28

    IN THE COURT OF APPEALS OF THE STATE OF WASH]                                                           d Sl-1I1 TO
                                                                                                                1
                                                                                                  By
                                                  DIVISION II                                            E7'.
                                                                                                           Z

STATE OF WASHINGTON,                                                          No. 42356 1 II
                                                                                        - -


                                   Respondent,

         V.




DATRION ISREAL NEWTON,                                                 UNPUBLISHED OPINION




         WORSWICK, C. . —Datrion Isreal Newton appeals his conviction of second degree
                    J


felony murder, arguing that he is entitled to withdraw his guilty plea because he pleaded guilty

under a statute that does not criminalize his behavior. We reject his argument and affirm.

                                                       FACTS


         In 2010, Tacoma police responded to a report of a shooting and found Donald McCaney

suffering from a serious head wound. McCaney was transported to a local trauma center, but
died.


         Witnesses described a scene with multiple fights involving members of two street gangs.

They    saw   Newton   pull   a   gun and fire     multiple   shots.    One of those shots accidentally hit

McCaney, who      was    being beaten        up   by   rival gang members.      Newton and McCaney were

friends.


         The State initially charged Newton with first degree murder with a firearm enhancement

and a gang aggravator; first degree assault with the same enhancement and aggravator; and first

degree     unlawful   possession    of   a   firearm, again with       the   gang   aggravator.    By amended
No. 42356 1 II
          - -



information, the State charged Newton with second degree felony murder committed in the

course   of and in furtherance of second       degree assault,    while armed with   a   firearm.   The


prosecutor explained that he was filing the amended information in the interests of justice:

         The victim, Donald McCaney, was Defendant's close friend. The victim was in a
         fist fight and Defendant intervened with deadly force, firing a pistol at two young
         men (gang rivals) who      were   fighting   with   McCaney. A bullet inadvertently
         struck McCaney, killing him. The victim's mother, who is well acquainted with
         Defendant and has been     visiting him at the jail, has told [the] Detective ... that
         she has forgiven Defendant and does not want to see him incarcerated for the
         equivalent of a life term.

Clerk's Papers ( P)at 12.
               C

         Newton entered   an   Alford/ ewton plea to the amended information, stating that he did
                                     N

not believe he had committed the crime charged but that he was taking advantage of the plea

offer to reduce the charges and for "the favorable sentencing recommendation,"understanding

that there was a " ubstantial likelihood"he would be convicted at trial. CP at. 1.
                 s                                                            2


         At the plea hearing, defense counsel stated that he had reviewed each paragraph of the

guilty plea statement with Newton, including the elements of second degree felony murder, and

that he believed Newton was making a --knowing and - intelligent waiver - the important
                        -   -                                           of -

constitutional rights he was giving up by pleading guilty. Newton stated that he did not have any

questions about the guilty plea statement. After a comprehensive colloquy, the trial court found

that Newton had made a knowing, intelligent, and voluntary plea; that he understood the charges

against him and the consequences of the plea; and that the factual basis for the plea was set forth

in the probable cause declaration. The court then imposed a high end standard range sentence of
                                                                 -

1 See State v. Newton, 87 Wn. d 363, 372, 552 P. d 682 (1976) adopting North Carolina v.
                              2                   2            (
Alford, 400 U. . 25, 91 S. Ct. 160, 27 L.Ed. 2d 162 (1970)) (
              S                                           defendant may plead guilty while
disputing facts alleged by prosecution).


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No. 42356 1 II
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254 months in custody, plus 60 months "flat time"for the enhancement, for a total sentence of

314 months.


       Newton appeals and seeks to withdraw his plea.

                                          DISCUSSION


       Newton argues that his guilty plea was not knowing, voluntary, and intelligent because he

pleaded guilty under a statute that does not criminalize his behavior. Newton did not seek to

withdraw his plea below on this or any other basis. As a general rule, issues cannot be raised for

the first time on appeal. RAP 2. (This rule does not, however, preclude review of an issue,
                              a).
                               5

involving a "manifest error affecting a constitutional right."RAP 2. (
                                                                  a)(State v. Scott, 110
                                                                   3);
                                                                   5

Wn. d 682, 684, 757 P. d 492 (1988).Due process requires a guilty plea to be made knowingly,
  2                  2

voluntarily, and intelligently. In re Pers. Restraint ofIsadore, 151 Wn. d 294, 297, 88 P. d 390
                                                                       2                 3

2004). Because Newton's claim implicates this constitutional requirement, it can be

characterized as an allegation of manifest error that warrants review.for the first time on appeal.

       Newton pleaded guilty to second degree felony murder under RCW 9A. 2.
                                                                      b).
                                                                      050(
                                                                         1)(
                                                                         3

This statutory provision states that a person is guilty of second degree murder when -
                                                        -

        h] or she commits or attempts to commit any felony, including assault, other
         e
       than those enumerated in RCW 9A. 2.
                                         e),
                                         030(   i)( and in
                                                3         and, in the course of
       furtherance of such crime or in immediate flight therefrom, he or she, or another
       participant, causes the death of a person other than one of the participants[.]

RCW    9A. 2. According to Newton, the statute is ambiguous about whether a
       b),
       050(
          1)(
          3

predicate felony that is an assault must be separate from the act causing the death. Because "a

fair reading"shows that the predicate assault and the act causing death must be separate, Newton

maintains that the second degree felony murder statute does not criminalize his acts as felony




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No. 42356 1 II
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murder. Brief of Appellant, at 6. See State v. Lively, 130 Wn. d 1, 14, 921 P. d 1035 (1996)
                                                             2               2

under rule of lenity, courts must interpret ambiguous statute in defendant's favor).

         As support, he cites the Supreme Court's opinion interpreting the former version of the

second   degree felony murder statute,    which did not   expressly   refer to assault.   In re Pers.


Restraint ofAndress, 147 Wn. d 602, 56 P. d 981 (2002);
                           2            3             former RCW 9A. 2.
                                                                 b)
                                                                 050(
                                                                    1)(
                                                                    3 1976).                            (

The Andress court opined that it was nonsensical for the former statute to refer to the death as

being " n furtherance of an assault if the act causing death and the assault were the very same
      i

act.   147 Wn. d at 610.
             2               Reasoning that the "in furtherance of language indicated that the

legislature did not intend that assault should serve as a predicate felony for second degree felony

murder, the Andress court concluded that under former RCW 9A. 2.a conviction of second
                                                          050,
                                                            3

degree felony murder could not be based on assault as the predicate felony. Andress, 147 Wn. d
                                                                                           2

at 610, 616; see also In re Pers. Restraint of Hinton, 152 Wn. d 853, 857, 100 P. d 801 (2004)
                                                             2                  3

 A conviction under former RCW 9A. 2.resting on assault as the underlying felony is not a
                               050
                                 3

conviction of a crime 'at all. ").


         The 2003 legislature -
                              responded to Andress by amending the second degree felony murder

statute to expressly include assault as a predicate offense to felony murder. LAWS of 2003, ch. 3,

  2; State v. Armstrong, 143 Wn. App. 333, 344, 178 P. d 1048. The following statement of
                                                     3

intent accompanied the amendment:

                The legislature finds that the 1975 .legislature clearly and unambiguously
         stated that any felony, including assault, can be a predicate offense for felony
         murder. The intent   was evident: Punish, under the applicable murder statutes,

         those who commit a homicide in the course and in furtherance of a felony. This
         legislature reaffirms that original intent and further intends to honor and reinforce
         the court's decisions over the past twenty eight years interpreting " furtherance
                                                      -                        in
         of as requiring the death to be sufficiently close in time and proximity to the
         predicate felony. The legislature does not agree with or accept the court's


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          No. 42356 1 II
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                 findings of legislative intent in State v. Andress, Docket No. 711704 October 24,
                                                                                     - (
                 2002),and reasserts that assault has always been and still remains a predicate
                 offense for felony murder in the second degree.

          LAWS of   2003, ch. 3, §1.

                 Newton maintains that despite this statement and the accompanying amendment, the

          ambiguity that led to the Andress court's construction of the former second degree felony murder

          statute remains because the amended statute retains the "in furtherance of         language.   RCW


          9A. 2. As stated, Newton asserts that the only way to cure this ambiguity is to
          b).
          050(
             1)(
             3

          interpret the statute to require the predicate assault to be separate from the act causing death.

                 We reject Newton's proposed interpretation of the second degree felony murder statute

          because it undermines the basic premise of felony murder; i..,
                                                                     e that the victim's death must be

          sufficiently close in time and place to the underlying felony so that the death is within the res

          gestae of the felony. Andress, 147 Wn. d at 609 (citing State v. Leech, 114 Wn. d 700, 709, 790
                                               2                                        2

          P. d 160 (1990)). prove that a homicide occurred in furtherance of a felony, there must be an
           2             To

          intimate causal connection between the events; more than a mere coincidence of time and place

I- _ - -- is necessary. State v.Hacheney,160Wn. d 513;158 P. d-(
                                              2        - 1152-(
                                                             2007)quoting State v.- - -
                                                             3

          Brown, 132 Wn. d 529, 608, 940 P. d 546 (1997)); v. Dudrey, 30 Wn. App. 447, 450, 635
                       2                  2             State

          P. d 750 (1981).A death cannot occur " n furtherance of an assault that is separate from the act
           2                                   i

          that caused the death.


                  Division One of this court has already rejected the argument that it should interpret the

          second degree felony murder statute to allow assault to serve as the predicate felony only where

          the assault was not also the act that caused the death. State v. Gordon, 153 Wn. App. 516, 527-

          29, 223 P. d 519 (2009), d on other grounds, 172 Wn. d 671, 260 P. d 884 (2011). The
                   3             rev'                        2             3



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No. 42356 1 II
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Gordon court observed that any ambiguity in the amended statute was cured by the

accompanying legislative statement: "The 2003 amendment in response to the holding in

Andress and its accompanying statement of intent make it clear the legislature wants assault to be

a   predicate felony." Gordon,   153 Wn.   App. at 529. Our Supreme Court has recognized as

much: "[
       F]ollowing our decision in Andress, the legislature amended the second degree felony

murder statute, effective February 12, 2003, to clarify that assault is included as a predicate

crime under the second degree felony murder statute." In re Pers. Restraint of Bowman, 162

Wn. d 325, 335, 172 P. d 681 (2007).
  2                  3

        The legislature has the power, within constitutional constraints, to define criminal

conduct and set punishments. State v. Wadsworth, 139 Wn. d 724, 734, 991 P. d 80 (2000);
                                                       2                  2

State v. Calle, 125 Wn. d 769, 776, 888 P. d 155 (1995).The amended felony murder statute
                      2                  2

achieves the legislature's express goal of punishing those who commit a homicide in the course

of and in furtherance of a felony in the same manner as those who intend to kill. Gordon, 153

Wn. App. at 527. This policy choice is well within the legislature's province. Gordon, 153 Wn.

App at 527. The legislature's express assertion that an assault causing deathmay -
                                                                                 serve as the -

predicate felony for a second degree felony murder charge, together with prior case law

interpreting the " in furtherance of provision, make it clear that Newton's proposed

interpretation must fail. We see no evidence of a manifest injustice in Newton's plea of guilty to

second degree felony murder based,on second degree assault.




                                                 Co
No. 42356 1 II
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       Affirmed.


       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




We concur:




anson,J.
62'
B'   ken




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