                                                                                                                FILED
                                                                                                           COURT
                                                                                                              DJ\
                                                                                                                  OF APPEALS
                                                                                                  2015 JUL - 7 * PSV, a: L L

                                                                                                      S

                                                                                                      F5
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                                 DIVISION II

 STATE OF WASHINGTON,                                                             No. 45795-
                                                             Consolidated with No. 45868
                                      Respondent,


          V.

                                                                    UNPUBLISHED OPINION
 BOBBY ZIMMERLE,




 In the Matter of the
 Personal Restraint Petition of


 BOBBY ZIMMERLE,


                                      Petitioner.




          MAXA, J. —    Bobby Zimmerle appeals an order denying his motion to withdraw his guilty

pleas to charges of harassment ( gross misdemeanor) and third degree assault. He argues that

there was an insufficient factual basis for his pleas. Zimmerle also filed a personal restraint


petition (PRP) claiming that he should be allowed to withdraw his guilty plea because his

counsel   had   a conflict of   interest,   which we consolidated with   his appeal. We hold that the trial


court erred in denying Zimmerle' s motion because the.record' does not show a sufficient factual

basis for his guilty   pleas.    Accordingly, we    reverse and remand    to the trial   court   to   allow
Consolidated Nos. 45795- 4- I1 / 45868 -3 - II



Zimmerle to withdraw his guilty pleas. Because we reverse on these grounds, we do not address

Zimmerle' s PRP. 1

                                                 FACTS


        On March 23, 2013, Zimmerle threatened a person with future bodily injury and

assaulted a public transit operator. The State charged Zimmerle with harassment ( gross


misdemeanor) and third degree assault.


        Zimmerle informed the trial court that he wanted to plead guilty to both charges. The

trial court accepted his guilty pleas, finding that he entered them knowingly, intelligently, and

voluntarily. A week later, Zimmerle made an oral request to withdraw his guilty pleas. The trial

court' denied this motion and imposed standard range concurrent sentences.


        Zimmerle subsequently filed a pro se written motion to withdraw his guilty pleas before a

different judge.2 He asserted in his supporting affidavit that he did not understand his pleas and

defense counsel lied to him, and he told the judge that he wanted to fire his counsel. The trial


court denied the motion.


        Zimmerle appeals and petitions for relief.




 Zimmerle also argued on direct appeal that the trial court violated his right to represent himself,
the State violated the plea agreement, and the trial court imposed legal financial obligations
without finding that he had the ability to pay them. Because we reverse on other grounds, we do
not address these arguments.



2 Zimmerle' s motion referred generally to his guilty pleas. However, his supporting affidavit
referred only to his guilty plea to third degree assault. At oral argument, Zimmerle and the trial
court again referred generally to his guilty pleas.


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Consolidated Nos. 45795 -4 -II / 45868 -3 -II



                                                        ANALYSIS


          Zimmerle claims that the trial court violated his due process rights by not ensuring that an

adequate factual basis for each plea existed. He argues that his plea statement did not contain the


facts necessary to support all of the elements of the offenses. We agree.

          We review a trial court' s order on a motion to withdraw a guilty plea or vacate a

judgment for          an abuse of   discretion. State   v.   Lamb, 175 Wn.2d 121, 127, 285 P. 3d 27 ( 2012). A


trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable

grounds or reasons. Id. A decision is based on untenable reasons if it is based on an incorrect


standard or if the facts do not meet the requirements of the correct standard. Id.


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

intelligent. State        v.   Codiga, 162 Wn.2d 912, 922, 175 P. 3d 1082 ( 2008). The criminal rules


reflect this principle by requiring that the trial court not accept a guilty plea unless it is satisfied

that there   is   a   factual basis for the   plea.   1d; CrR 4. 2( d). To establish the factual basis, the trial


court can rely on any reliable information that has been made part of the record, including the

prosecutor' s statement of the facts if they are adopted by the defendant. Codiga, 162 Wn.2d at

924. The evidence must be sufficient to conclude that the defendant is guilty. In re Pers.

Restraint of Cross, 178 Wn.2d 519, 526, 309 P. 3d 1186 ( 2013), cert. denied, 135 S. Ct. 1701


 2015).


          Regarding the harassment charge, Zimmerle admitted in his plea statement that " I made a

threat   against a person."         Clerk' s Papers ( CP) at 12. However, the plea statement omitted the


requirement in RCW 9A.46. 020( 1)( b) that to be guilty of harassment, the offending conduct

must place        the   person   threatened " in   reasonable   fear that the threat   will   be   carried out."   The trial




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Consolidated Nos. 45795 -4 -II / 45868 -3 -II




court' s colloquy with Zimmerle when it accepted the plea also did not reference the reasonable

fear requirement. And Zimmerle adopted no other evidence in the record regarding this

requirement. Therefore, there was insufficient evidence in the record to show a factual basis for


Zimmerle' s guilty plea to the harassment charge.

           Regarding the third degree assault charge, Zimmerle admitted in his plea statement that

he "   assaulted a public   transit   employee."        CP at 12. However, the plea statement omitted the


requirement     in former RCW 9A. 36. 031( 1)( b) (            20 11) 3 that to be guilty of third degree assault, a

person must assault a transit employee " while that person is performing his or her official

duties."    The trial court' s colloquy with Zimmerle when it accepted the plea also did not

reference the performing official duties requirement. And Zimmerle adopted no other evidence

in the record regarding this requirement. Therefore, there was insufficient evidence in the record

to show a factual basis for Zimmerle' s guilty plea to the third degree assault charge.

           Zimmerle' s guilty plea, which was on a preprinted form, allowed him to check a box next

to the   following   clause: "    Instead of making a statement, I agree that the court may review the

police' reports and/ or a statement of probable cause supplied by the prosecution to establish a

factual basis for the    plea:"    CP   at   12.    Checking that box may have allowed the trial court to

determine a factual basis for all the elements of the charges against Zimmerle. However,


Zimmerle did not check that box.




3
    RCW 9A.36. 031     was amended           in   July 2013. However, this amendment does not affect the
subsection cited.     LAWS    of   2013,     ch.   256, § 1.



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Consolidated Nos. 45795 -4 -II / 45868 -3 -II




        The State notes that the plea agreement acknowledges that the elements of harassment


and third degree assault are set forth in the charging document. The State argues that the plea

agreement therefore adopted the charging document by reference. However, referencing the

elements of charged crimes shows only that Zimmerle was aware of those elements. But that is

different than stating a factual basis for those elements.

        The State also argues that Zimmerle' s argument is inconsistent with In re Pers. Restraint


of Hilyard, 39 Wn.   App.    723, 695 P. 2d 596 ( 1985).   In Hilyard, we held that the requirement that


the trial court be satisfied with a guilty plea' s factual basis is based on CrR 4. 2( d) and is not the

same as the constitutional requirement that the defendant have an understanding of the nature of

the charge. Id. at 727. And as a result, we denied the defendant' s PRP because the alleged


absence of a factual basis in the record was not an error of constitutional dimension. Id. at 727-

28.


        However, a PRP requires a showing of constitutional error. In re Pers. Restraint of

Borrero, 161 Wn.2d 532, 536, 167 P. 3d 1106 ( 2007). Here, Hilyard is inapplicable because we


are addressing Zimmerle' s direct appeal, which involves a different burden. In subsequent cases

not involving a PRP, we have invalidated guilty pleas where the plea agreement facts and other

facts before the court do not demonstrate an essential element of the charged crime. E.g., State v.

R. L. D., 132 Wn.   App.   699, 705- 06, 133 P. 3d 505 ( 2006);   State v. S.M., 100 Wn. App. 401, 413-

15, 996 P. 2d 1111 ( 2000).




                                                     W1
Consolidated Nos. 45795 -4 -II / 45868 -3 - II




        We hold that because there was no factual basis for Zimmerle' s guilty pleas in his plea

statement or anywhere else in the record, the trial court abused its discretion in denying

Zimmerle' s motion to withdraw those pleas. Accordingly, we reverse and remand to the trial

court to allow Zimmerle to withdraw his guilty pleas.

        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


2. 06. 040, it is so ordered.




                                                                                  i
                                                        MAXA,




We concur:




     ORSWICK, P. J.




 T   E, J.




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