                                                                 FLED
                                                         COURT CF APPEALS my I
                                                          STATE OF WASMGTO1!

                                                          2011 JUL 24 LI 9:55




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

In the Matter of the Personal                    No. 74507-7-1
Restraint Petition of
                                                 UNPUBLISHED OPINION
WILLIAM NEAL FRANCE,

                            Petitioner.          FILED: July 24, 2017

       SCHINDLER, J. — On October 19, 2011, William Neal France pleaded guilty to

nine counts of felony harassment. On December 8, 2015, France filed a personal

restraint petition. France argues that because the course of conduct is repeatedly

threatening to cause bodily harm to a victim, multiple convictions for the same offense

violate double jeopardy. France asserts State v. Vidales Morales, 174 Wn. App. 370,

298 P.3d 791 (2013), supports his argument and we must vacate six of the nine

convictions. We considered and rejected the same argument in the linked case, State

v. France, No. 74508-5-1(Wash. Ct. App. July 24, 2017). Because unlike in Vidales

Morales France made different types of threats to cause bodily harm to each of the

three victims at different times and locations, we conclude the unit of prosecution is

each threat, and deny the personal restraint petition.

       The procedural history is more fully set forth in the linked case, France, No.

74508-5-1, and is repeated only as necessary.
No. 74507-7-1/2

       On September 23, 2011, the State charged France with six counts of felony

harassment in violation of RCW 9A.46.020 of his former The Defender Association

(TDA)attorney Anita Paulsen, five counts of felony harassment of TDA Deputy Director

Lisa Daugaard, and five counts of felony harassment of TDA social worker Nina Beach.

The State alleged France manifested deliberate cruelty and committed the offenses

against Paulsen and Daugaard as officers of the court as aggravating factors. On

October 19, 2011, France pleaded guilty to nine counts of felony harassment. France

stipulated that he committed the crimes against Paulsen and Daugaard as officers of

the court.

       France pleaded guilty to three counts of felony harassment of Paulsen on

December 28, 2010, count 3; January 10, 2011, count 4; and January 25, 2011, count

6.

       The December 28 voice mail France left for Paulsen states:

       Hey Anita bitch, how yeah doin'? This is France again. Did you get my
       message this mornin'? Were you in, were you in the closets over at the
       King County, King County Courthouse, in the closet with some
       motherfucker suckin' some mo, suckin' more cock so you can make more
       money? Huh? You out suckin' more cock? Huh? Suckin' dick, huh?
       You're a good dick suckin' bitch, aren't yeah? Plus you're a snitch bitch.
       Yeah, well I got a surprise for you when I get out a jail bitch. I'm gonna
       take a hold a yeah, I'm gonna grab a hold of yeah and rip your fuckin' shirt
       right off yeah so I can see those big tits a yours. I wanna see them big
       fuckin' tits you've got. I wanna maybe even suck on 'em, suck on 'ern and
       see how you fuckin' feel bitch. See, huh? Then maybe bend you over
       and stick my dick in your ass. Fuck you in your ass, yeah. While I'm
       suckin' on your tits. Yeah. Just do it right in the main street, right on a
       sidewalk. Bitch, I got surprises for you, you snitchin' motherfuckin' bitch.
       You just fuckin' wait. When I get out, you gonna get a whole lot of it. A
       whole lot a my cock up in your ass.




                                            2
No. 74507-7-1/3

      The January 10 voice mail to Paulsen states:

      Hey Anita, this is France calling ya. You got such a sweet voice, you
      know it? I bet you got some sweet lips too to go around my fuckin' cock.
      Suck my dick when I want, when I want you to. You know that I got a shit
      sandwich for you? Yeah, when I see you on the streets. I get out in nine
      months, bitch. None mother fucking months I'm getting out. You got it?
      And I'm going to be, I'm going to be all over you like stink on shit, bitch. I
      got a shit sandwich for you. Oh yeah. You don't think this is all going to
      happen? You fucked off. You're a worthless, fucking lawyer. You brung
      [sic] shit on me that came out of Chehalis and should have never came
      up. Eleven fucking years old. You understand? Eleven fucking years old,
      period. It should have stayed in the archives, you dumb bitch. You're
      stupid. You're really fucking stupid. I didn't want to hear nothing about
      that shit in Chehalis every [sic] again. I walked out of that fucking jail and I
      got that mother fucker behind me. You wanted to bring it up in court.
      You're a worthless bitch, Anita. You're worthless. And I'm going to stick a
      fucking shit sandwich down your fucking throat when I get out of prison.
      I'm going to find ya. I'm going to find ya coming out of that mother fuckin'
      building. I'm going to do [it]. I'm going to walk right up to you and I'm
      going to shove it right down your fucking throat. Count on it, bitch. It's a
      dream come true. Don't think I'm not going to do it because I will do it.
      You have a nice fucking life until I get out, which is nine months away.

      The January 25 voice mail to Paulsen states:

      Hey Paulsen. This is France again. You ain't scared yet? You better be.
      You better be, you be, you better quiverin' in them fuckin', those panties
      you got on. You're gonna be quiverin' in that pussy you got in between
      your legs. Because what you did to me in fuckin' court while I was in jail,
      you're gonna be, you're, you're, you're fuckin' gonna, you're gonna pay
      the price. I got nine more months to go and I'm out a this motherfuckin'
      place. Nine fuckin' months and I'm gonna check you out. I'm gonna find
      out where the fuck you live and the whole ball a wax. Yep. It's time for
      me to put a bullet in yeah. Not kill yeah,just put a bullet in yeah. If you
      know what the phrase is. Not kill yeah,just make you walk with a fuckin'
      limp for the rest of your fuckin' life. And if you ain't scared now, you better
      be in nine motherfuckin' months bitch. Take heed, I'll be back. I'll be out
      there pretty soon. Ha, ha, ha, ha, ha, ha, ha. You worthless nigger bitch.

      France pleaded guilty to three counts of felony harassment of Daugaard on

January 11,2011, count 7; January 12, 2011, county 8; and January 25, 2011, count 9.




                                             3
No. 74507-7-1/4

      The January 11 voice mail to Daugaard states:

      Hey Lisa, this is France. In nine months you're going to be available
      because you got a bullet with your fucking name on it, bitch. Don't
      interfere with anything I'm doing on the phone with fucking Paulsen. You
      got that? Or Nina Beach. Got that? You got, you got that? Get it up your
      cunt, bitch. Get wise. Don't be stupid.

      The January 12 voice mail to Daugaard states:

      Yeah, well Lisa, this is France again. I'm trying to get a hold of you.
      Apparently some man came to my door and told me that you're my, you
      was my fucking lawyer at one point and time. You've never been my
      lawyer. Okay. That I can remember. Okay. Ah, as far as it goes by, by
      me, me pursuing what I've told you what I'm going to do. Yes. I got nine
      fucking months. And I got a surprise for you. Okay. Like I said, you got a
      fucking bullet with your fucking name on it, bitch. So does Paulsen.
      Okay. She's going to eat a shit sandwich first because I'm going to put it
      right in the fuckin' kneecap. And I'm going to cut your bra off when I see
      you in the mother fucking hallway or in the fucking elevator. When I first
      put sights on you, bitch, I'm cutting your bra right off you. And I'm going to
      do it. I don't give a fuck what the consequences. You got in my fucking
      position. You got in my program. So eat shit and die, bitch. Got it? Huh?
      Ya got it?

      In the January 25 voice mail to Daugaard, France states:

      Hey Lisa, this is Mr. France callin' you again. What the fuck. . .
      possesses you to call the penitentiary, and, and talk to some fat
      motherfucker that comes to my fuckin' door tellin' me that you used to be
      my fuckin' lawyer. You've never been my fuckin' lawyer, you, you fuckin'
      (unintelligible) ignorant tramp. You stupid bitch. And what all I've, what
      I've been sayin' about how, what I'm gonna do to yeah, I'm gonna put a
      fuckin' bullet in your fuckin' kneecap when I see yeah on the streets. You
      are developing a big pain in my motherfuckin' dick and the only way to get
      rid of the pain in my dick is if I put a bullet in your goddamn kneecap,
       make sure you walk around,.. . wobble around for awhile. You know?
      Stay in a wheelchair for awhile is what you deserve you little nigger bitch.
      Cause I'm gonna get you when I get out. This is affirmative. This is like
      ball, this is a ballpark field. You know? It's, it's a homerun bitch. You
      know? And like uh, uh I'm pretty pissed off at yeah. Real mad. Real
       mad, I'm mad as a motherfucker. Mad as a motherfucker. I'm really
      fuckin' mad. And I've never been, been so mad since, at a bitch, my
      whole fuckin' life like I am at you. You are, are history. You're gonna hit,
       you're gonna hit the motherfuckin' wheelchair real soon. Soon as I get
      out. And I know what you look like. You're not gonna know what the fuck


                                            4
No. 74507-7-1/5

      I look like, but I'm gonna find out what the fuck you look like. You fuckin'
      right I am. As soon as I do, ha, ha, ha, oh yeah, you're fuckin' gonna get
      it. You're gonna get it on the slide side. Comin' out an elevator, pow, right
      in the fuckin' kneecap. . . and I'm gonna walk away. Oh I'm gonna make
      sure sweetheart. A good gun don't make a lot a noise see. I got a be
      professional. You can get anything you want on the street if you got the
      fuckin' money. Anything you want. Anything. It don't matter what the fuck
      it is. Anything you want you can get. Uh just remember, I'm gonna be
      seem' you in about nine motherfuckin' months. Do you hear me Lisa?
      Yeah,'bout nine motherfuckin' months. And I'm gonna get yeah, get you,
      get you, good. Think about [it] bitch, while you sit there, think hard about it
      how it's gonna fuckin' feel. Uh, huh. Or that I can just put a cut in your tit,
      just cut your tits. You know? Cut your motherfuckin' bra off and cut your
      tit. Ha, ha, ha, ha, ha. Make it bleed baby, like your pussy. You
      sometimes bleed out of the pussy don't yeah? Yeah, 1 but [sic] you do. I
      like to lick it up. Yeah cause that's how I am. I like to lick the pussy when
      it's on the rag, when bitches are on the rag. You're on the fuckin' rag
      bitch, I'll find you when you're on the rag and I'll eat your pussy and put my
      dick in your booty. Ha, ha, ha.

      France pleaded guilty to three counts of felony harassment of Beach on

December 28, 2010, count 12; January 12, 2011, count 14; and January 25, 2011,

count 15.

      The December 28 voice mail to Beach states:

      Nina. You're nothing but a snitching fucking bitch. You know that? A
      rotten fucking nigger. This is France calling you, cunt. When I get out of
      jail, I've got a surprise for you. A big fucking surprise. When I see you
      come out of that fucking building, I'm going to grab a hold of you and rip
      your fucking shirt right off ya. Because I want to see them big brown
      fucking tits, bitch. Because you're fucking mine, when I get out. You hear
       me, you nigger bitch? You rotten snitching fucking bitch. I got a letter
      from Lisa telling me I've been harassing you. I didn't harass your fucking
      ass. At least you could have done is wrote me a fucking letter and told me
      that you couldn't help me. But you didn't want, want to do that. You want
      to be a stupid nigger bitch. And I'm out to get ya. Believe it. I'm going to
      get ya. I get out in a fucking year, bitch. And I'm going to get you. I'm
      going to get you good.

      The January 12 voice mail to Beach states:

      Nina. How come you never answer your fucking phone, your [sic]
      worthless black fucking nigger bitch? This is France. And by the way, you


                                             5
No. 74507-7-1/6

       think for one fucking minute of what I'm telling you on the fucking phone,
       and been telling you on the fucking phone, won't come true? My dreams
       come true, bitch. And when I get out in nine mother fucking months, I'm
       going to stalk you. In the right place, the right time. I'm cutting your
       fucking bra right off you, bitch. And I'm going to put a shit sandwich down
       your mother fucking throat. Count on it, bitch. It's like a deposit in the
       fucking bank. You worthless nigger bitch. You're worthless. You're
       worthless fucking nigger bitch. But you do got nice tittles. You do got
       some nice tits.

       The January 25 voice mail to Beach states:

       It's more like Nina bitch. You know Nina bitch. Yeah Nina, this is France
       again. How you gonna feel when I suck on your fuckin' black tits and I put
       my white cock in your ass? Huh? Cause I'm gonna stalk the bitch when I
       get out. I'm gonna find out where the fuck you live. And I'm gonna fuckin'
       kick your fuckin' door in and have my, I'm gonna have some fuckin' fun
       with you. Oh I'm gonna have some motherfuckin' fun with you bitch.
       You're nothin' but a worthless tramp, fuckin' worthless cunt, motherfuckin'
       snitch bitch and I don't like snitchin' bitches. So take heed, if you ain't
       scared now, you're gonna be in nine fuckin' months when I get out of,
       when I get out a, get out a prison. Cause I'm gonna, I'm gonna fuck your
       whole world up bitch. I'm gonna fuckin' suck on them tits. I'm puffin' my
       white cock in your ass. Oh yeah. And if you smell good enough, I might
       eat your pussy. I don't know yet. That's a, that's a tosser, but I will put my
       dick in your ass though. That's for goddamn sure. How does it feel to be
       called a fuckin' nigger? Huh? How does it feel to be called a fuckin'
       snitch bitch? Huh? I didn't, I didn't, I wasn't harassin' you and I wasn't
       threatenin' you. I just wanted to get your fuckin' help. . . , but you
       wouldn't even write me back and tell me what the fuck is going on. You're
       a worthless motherfuckin' cunt man. You're worthless and I'm gonna get
       yeah. Get yeah. I'm gonna keep callin' yeah and lettin' you know that you
       got a rabbit on your ass and I'm gonna chew you up.

       In his "Statement of Defendant on Plea of Guilty," France states, "I placed the

calls that are contained in pre-trial exhibit 1." Pre-trial exhibit 1 contains audio

recordings and transcripts of the voice mails to Paulsen, Daugaard, and Beach. The

State agreed to dismiss the other seven counts of felony harassment and the

aggravating factor of manifest deliberate cruelty. The court imposed a 180-month

exceptional sentence and ordered no contact with the victims for 15 years.



                                              6
No. 74507-7-1/7

       We affirmed the imposition of the exceptional sentence. State v. France, 176

Wn. App. 463,465, 308 P.3d 812(2013). The Washington Supreme Court denied the

petition for review. The mandate issued on March 21, 2014.

       France filed a personal restraint petition on December 8, 2015, arguing six of the

nine felony harassment convictions violate double jeopardy. The State argues that

because France agreed to his criminal history as part of the negotiated plea agreement,

he waived his right to challenge the convictions on double jeopardy. We disagree.

       A petitioner filing a personal restraint petition is entitled to relief if he is under an

unlawful restraint as defined in RAP 16.4. A restraint is "unlawful" where "[t]he

conviction was obtained . .. in violation of the Constitution of the United States or the

Constitution. . . of the State of Washington." RAP 16.4(c)(2). A petitioner raising

constitutional error must show the error caused actual and substantial prejudice. In re

Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004); In re Pers.

Restraint of Cook, 114 Wn.2d 802, 811-12, 792 P.2d 506 (1990).

       As a general rule, a knowing, voluntary, and intelligent guilty plea prohibits the

collateral attack of a plea agreement because the defendant "waives constitutional

rights that inhere in a criminal trial, including the right to trial by jury, the protection

against self-incrimination, and the right to confront one's accusers." Florida v. Nixon,

543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004); Tollett v. Henderson, 411

U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); In re Pers. Restraint of

Breedlove, 138 Wn.2d 298, 310, 979 P.2d 417(1999).

       In United States v. Broce, 488 U.S. 563, 573-75, 109 S. Ct. 757, 102 L. Ed. 2d

927(1989), the Supreme Court held that a defendant who has entered a plea of guilty



                                                7
No. 74507-7-1/8

to a criminal charge may not assert a double jeopardy claim in a collateral attack upon

the sentence unless an exception applies. An exception applies if either the plea

entered was not knowing and voluntary or the government had no right to bring the

charges at all. Broce, 488 U.S. at 573-75. In In re Personal Restraint of Francis, 170

Wn.2d 517, 242 P.3d 866(2010), the court held that while "[a] guilty plea, by its nature,

admits factual guilt—and thus waives any challenge on that ground," pleading guilty

does not waive a double jeopardy challenge to "'"the very power of the State to bring

the defendant into court to answer the charge brought against him."'" Francis, 170

Wn.2d at 522(quoting State v. Knight, 162 Wn.2d 806, 811, 174 P.3d 1167(2008)

(quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098,40 L. Ed. 2d 628 (1974))).

       Because the guilty plea did not waive a double jeopardy challenge to entry of

multiple convictions for the same offense, the one-year time limit under RCW 10.73.090

does not apply to a personal restraint petition based solely on the grounds of double

jeopardy. Francis, 170 Wn.2d at 522; RCW 10.73.100(3).

       Here, as in the linked case, because the facts establish France made different

types of threats to cause bodily injury to Paulsen, Daugaard, and Beach at different

times and places, the unit of prosecution is each threat.

       France left voice mails for Paulsen on December 28, 2010; January 10, 2011;

and January 25, 2011. In the December 28 voice mail, France threatens to "grab" her,

"rip" her shirt off, and sexually assault her "in the main street, right on a sidewalk," when

he "get[s] out a jail." In the January 10 voice mail, France threatens to force Paulsen to

perform oral sex on him "in nine months" when he finds her leaving work. In the

January 25 voice mail, France tells Paulsen he will find out where she lives and "put a



                                              8
No. 74507-7-1/9

bullet" in her.

       France left voice mails for Daugaard on January 11, 2011; January 12, 2011; and

January 25, 2011. In the January 11 voice mail, France tells her that in nine months, he

has "a bullet" for her. In the January 12 voice mail, France threatens to sexually assault

Daugaard in the hallway or the elevator and tells Daugaard that she can "die." In the

January 25 voice mail, France threatens that when he sees her "on the streets," he will

"cut" her, he will sexually assault her, and he will make sure she stays "in a wheelchair

for awhile."

       France left voice mails for Beach on December 28, 2010; January 12, 2011; and

January 25, 2011. In the December 28 voicemail, France threatens Beach that when

he gets out in a year, he will "grab" her and "get [her] good" as she is leaving work and

he will "rip [her] shirt right off." In the January 12 voicemail, France tells Beach that "in

nine ... months," he will "stalk" her and sexually and physically assault her. In the

January 25 voice mail, France threatens to "kick [her] door in" and "get" her.

       Because we conclude the guilty plea to nine counts of felony harassment do not

violate double jeopardy, we deny the personal restraint petition.




WE CONCUR:




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