IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

### ) No. 76648-1-I

Respondent, 

### )

) DIVISION ONE v. DERWIN ROBINSON, 

### ) PUBLISHED OPINION 

### ) Appellant. 

### ) FILED: April 22, 2019

__________________________________________________________________________________) MANN, J.

— In a prosecution where predicate convictions are an essential element ofthe crime, the State is required to prove the previous convictions are valid and constitutional beyond a reasonable doubt. Derwin Robinson appeals his 2016 felony conviction ofviolating a no-contact order. Robinson’s felony conviction was predicated on Robinson’s plea to two 2015 misdemeanorviolations ofa no-contact order based on Robinson’s single act ofassaulting his wife. It is undisputed that one of Robinson’s 2015 convictions was based on a criminal act. It is also undisputed thatthe second conviction was based entirely on fiction—purportedly relying on State v. Zhao, 157 Wn.2d 188, 190, 137 P.3d 835 (2006).No. 76648-1-1/2

Robinson argues that because the two 2015 convictions were based on a single criminal act, the second, fictitious conviction violates doublejeopardy and the State failed to demonstrate two valid and constitutional predicate prior convictions. We agree with Robinson. We hold that Zhao does not provide a basis to avoid doublejeopardy and convict a person fortwo crimes based on one criminal act. Accordingly, we reverse.

On October22, 2015,. Ericka Robinson called 911 to reportthat Robinson, her then spouse, assaulted her. Officers responded and determined that an existing nocontact order prohibited Robinson from assaulting, harassing, orthreatening bodily harm to Ericka.1 The no-contact orderdid allow in-person contact between the two, but did not allowthe two to reside together. According to the determination for certification of probable cause: Ericka stated that she and [Robinson] were at a neighboring apartment when they began to argue about a bank card and something spilling in her vehicle. Ericka ran from [Robinson] as he chased herthrough the apartment, trying to avoid being assaulted. [Robinson] caught up to Ericka as she neared the doorto the apartment. [Robinson] pushed her and she fell outthe door onto the concrete patio. When Ericka fell, she landed on her left hip, causing an abrasion and friction burns to her hip. The following day, Ericka’s father called 911 to reportthat he believed Robinson
was back in Ericka’s home. There is no indication that Ericka was home, orthat a furtherviolation ofthe no-contact order occurred. Officers went to the location, found Robinson inside, and arrested him.

1 Atthe time ofthe event, the Robinsons shared a last name. Forclarity, we referto Ericka Robinson by herfirst name. No disrespect is intended. -2-No. 76648-1 -1/3

While the 2015 information is not before us, it appears that Robinson was charged with one count offelonyviolation ofa court order predicated on the assault. RCW 26.50.110(4). Robinson has a substantial prior criminal history and faced a long sentence fora felony conviction. Priorto trial, Robinson negotiated a settlement pleading guiltyto two misdemeanorviolations ofa court order, in lieu of being found guilty or pleading guiltyto the felonyviolation. For one ofthe misdemeanor convictions, Robinson admitted that he willfully violated the no-contact order. The plea forthe second misdemeanorwas purportedly entered underZhao and In re Barr, 102 Wn.2d 265, 684 P.2d 714 (1984). Robinson admitted thatthere was no factual basis forthe plea. Robinson’s understanding was memorialized in his plea statement: I am pleading guiltyto two counts misdemeanor Domestic Violence Violation ofa Court Order. Further, I have been advised by my attorney thatthis plea is legal and permissible pursuant to [Zhao] (factual basis for pleading guiltyto amended charges was not required where there existed a factual basis supporting the original charges) and [Barr] (“A plea does not become invalid because an accused chooses to plead to a related lessercharge thatwas not committed in orderto avoid certain conviction for a greateroffense. The trial court mustfind a factual basis to support the original charge, and determine that defendant understands the relationship of his conductto that charge. Defendant must be aware that the evidence available to the State on the original offense is sufficient to convince ajury of his guilt.”) Pursuant [Zhao] and 

### [Barr], on or about 10/22/15, in King County, WA, I did know ofand willfullyviolate the terms ofa court order issued on 9/15/15 bythe King County Superior Court pursuantto ROW chapter 10.99 forthe protection of Ericka Sanders Robinson, mywife and motherof my child, in violation ofthe conditions listed in that order. Aftera subsequent incident between Robinson and Ericka in October2016, the State charged Robinson with one count offelonyviolation ofa no-contact order under two theories: (1) that Robinson’s conduct during the no-contact violation was an assault

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under RCW 26.50.110(4)2 or (2) that Robinson’s two prior misdemeanorconvictions for violating a no-contact order elevated the crime to a felony under RCW26.50.110(5).3 Afterthe State agreed notto proceed on the assaulttheory and pursue onlythe two prior misdemeanors theory, the parties stipulated to a bench trial. By pretrial motion, Robinson asked the trial courtto preclude the two prior2015 misdemeanor convictions as predicate convictions supporting the felony charge under RCW26.50.110(5). Robinson argued that his two misdemeanor convictions were insufficient predicate convictions to elevate the current charge to a felony no-contact violation underthe statute because there was only one factual basis to supportthe two charges. The trial court denied Robinson’s motion to exclude the predicate conviction. The court held that RCW26.50.110 did not preclude predicate convictions based on a Zhao plea. After reviewing Robinson’s plea statementfrom the 2015 convictions, the trial courtfound: Although oddlywritten, the parties agree thatthe above statement constituted a “straight plea,” ofguiltyto one count of DomesticViolence MisdemeanorViolation of Court Order, and a Zhao plea ofguilty as to the second count. The parties furtheragree thatthere is no factual basis to support a second conviction for DomesticViolence MisdemeanorViolation ofa Court Order. Following a stipulated bench trial, Robinson was found guilty offelonyviolation of
a court order—domesticviolence. Robinson appeals.

2 “Any assault that is a violation ofan order issued underthis chapter... and that does not amountto assault in the first orsecond degree

... is a class C felony.” RCW26.50.110 (4).

~ “Aviolation of a court order issued underthis chapter, chapter... is a class C felony ifthe offender has at leasttwo previous convictions forviolating the provisions of an order issued underthis chapter.” RCW26.50.110(5) (emphasis added). -4-No. 76648-1-1/5

Robinson was charged and convicted offelonyviolation ofa no-contact order predicated on the allegation that he had “at least two prior convictions forviolating the provisions ofan order” issued underspecific statutes. RCW26.50.110(5). In a prosecution where predicate convictions are an essential element ofthe crime, such as in the case of RCW26.50.110(5), the State is required to prove the previous convictions beyond a reasonable doubt. State v. Carmen, 118 Wn. App. 655, 666, 77 P.3d 368 (2003). Robinson argues thatthe State failed to meet its burden to prove that he had two valid and constitutional prior convictions forviolating a no-contact order. We agree. Procedurally, and as a preliminary matter, the trial court determines the validity of
a prior conviction forthe purpose of RCW26.50.110(5). State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005); Carmen, 118 Wn. App. at 665. As our Supreme Court has explained, First, a defendant may raise a defense to such a prosecution by alleging the constitutional invalidity ofa predicate conviction, and second, upon doing so, the State must prove beyond a reasonable doubtthatthe predicate conviction is constitutionally sound. In raising this defense, the defendant bears the initial burden ofoffering a colorable, fact-specific argument supporting the claim of constitutional error in the prior conviction. Only afterthe defendant has made this initial showing does the State’s burden arise. Statev. Summers, 120 Wn.2d 801, 812, 846 P.2d 490 (1993). We reviewthe validity of
a predicate offense de novo. Carmen, 118 Wn. App. at 663. A. The State based its 2016 felony no-contact charge on Robinson’s 2015 plea and conviction fortwo misdemeanor no-contactviolations. The 2015 plea and convictions, however, were based on an erroneous application ofZhao. Zhao allows a defendantto
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plead guiltyto an amended charge forwhich there is no factual basis, so long as there is a factual basis forthe original charge. Zhao, 157 Wn.2d at 200. Zhao does not, however, allow a defendantto be convicted oftwo separate crimes based on one criminal act and one original charge. The defendant in Zhaowas originally charged with two counts offirst degree child molestation based on two separate incidences involving two separate children in a restroom atthe restaurantwhere Zhao worked. Zhao, 157 Wn.2d at 191. The State offered to amend the charges to two counts of conspiracy to commit indecent liberties and one count ofsecond degree assault. In orderto avoid a possible indeterminate sentence, Zhao entered an Alford4 plea ofguiltyto the amended charges, despite no factual basis supporting the conspiracy element because Zhao acted alone. Zhao, 157 Wn.2d at 191. Zhao subsequently moved to withdraw his plea arguing that he did not expressly confirm that he understood that he was pleading guiltyto charges forwhich there was no factual basis. The trial court denied Zhao’s requestto withdraw his plea. Zhao, 157 Wn.2d at 196. On appeal, the Supreme Courtfirst addressed whether a trial court has authorityto accept a plea where “where there is no factual basis forthe ultimate charges.” Zhao, 157 Wn.2d at 198. After considering the CrR 4.2(d) requirementthat the trial court mustfind a factual basis fora plea ofguilty, the Court held that a defendant can plead guiltyto an amended charge with no factual basis so long as there
was a factual basis forthe original charge.5

~‘ Underan Alford plea, a defendant may take advantage of a plea agreementwithout acknowledging guilt. N. carolina v. Alford, 400 U.S. 25, 36, 91 S. Ct. 160, 27 L. Ed. 2d 162.

~ CrR 4.2(d) provides: -6-No. 76648-1-1/7

Since the factual basis requirement, both in case law and in this courts rule is founded on the concept ofvoluntariness, we hold that a defendant can plead guiltyto amended charges forwhich there is no factual basis, butQ.~jjy ifthe record establishes thatthe defendant did so knowingly and voluntarily and thatthere at least exists a factual basis forthe original charge, thereby establishing a factual basis forthe plea as a whole. Doing so supports a flexible plea bargaining system through which a defendant can choose to plead guiltyto a related charge thatwas not committed, in orderto avoid near certain conviction fora greater offense. Zhao, 157 Wn.2d at 200. Critical to our analysis here, however, is thatZhao was originally charged with two counts offirst degree child molestation, each supported by a distinct criminal act or factual basis. Zhao then pleaded to two lesser counts of conspiracyto commit indecent liberties—acts thatwere not supported by a factual basis because there was no evidence ofa conspiracy. The Supreme Court affirmed the trial court’s decision to deny Zhao’s motion to withdraw his plea because, while the two amended charges were not supported by a factual basis, there was a factual basis for each ofthe two originally charged crimes. In contrast, Robinson was originally charged with one act offelonyviolation of a no-contact order predicated on an assault. The charge was based on one criminal act—the October22, 2015 contact and assault. There was a factual basis to support only one original charge. Robinson pleaded to and was convicted of, however, two counts of misdemeanorviolation ofa no-contact order. It is undisputed thatthere is no factual basis for a second charge. Both the State and trial court misapplied Zhao in

The court shall not accepta plea ofguilty, withoutfirst determining that it is made voluntarily, competently and with an understanding ofthe nature ofthe charge and the consequences ofthe plea. The court shall not enter a iudgment upon a plea unless it is satisfied thatthere is a factual basis forthe plea. (Emphasis added.) -7-No. 76648-1-118

determining that Zhao allows a defendantto plead guiltyto two criminal charges based solely on a single criminal act. B. Because there was only one criminal act supporting Robinson’s 2015 conviction, Robinson argues that his two 2015 convictions are not constitutionally valid because theyviolate the doublejeopardy clause. We agree. The doublejeopardy clause ofthe U.S. Constitution provides that no individual shall “be twice put in jeopardy of life or limb” forthe same offense, and the Washington Constitution provides that no individual “be twice put in jeopardyforthe same offense.” U.S. CONST. Amend. V; CONST. Art. I, 

### § 9. The Fifth Amendment’s doublejeopardy protection “is applicable to the States through the Fourteenth Amendment.” Benton v. Maryland, 395 U.S. 784, 787, 89 5. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double jeopardy provisions ofthe state and federal constitutions protect against (1) a second prosecution forthe same offense after an acquittal, (2) a second prosecution forthe
same offense after conviction, and (3) multiple punishments forthe same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89S. Ct. 2072,23 L. Ed. 2d 865 (1969) overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). When a person is charged with multiple counts ofthe same offense, “each count must be based on a separate and distinct criminal act.” State v. Mutch, 171 Wn.2d 646, 662, 254 P.3 803 (2011). While the reviewing court looks to the entire record, review is “rigorous and among the strictest” to protect against doublejeopardy. It must be

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‘manifestly apparent” from the record, testimony, and argumentthatthe two identical charges are based on separate acts. Mutch, 171 Wn.2d at 664. Here, it is undisputed that Robinson’s two 2015 convictions for misdemeanor violation ofa no-contact orderare based on one act. The determination for certificate of probable cause describes only a single act—the October22, 2015 assault of Ericka. There is no evidence ofa second and distinct criminal act supporting Robinson’s second conviction. Consequently, Robinson’s second 2015 conviction forviolation ofa no-contact order—which all parties agree was based on pure fiction—violated the doublejeopardy clause and must be vacated. Mutch, 171 Wn.2d at 664. C. The State argues that by pleading guiltyto the two 2015 convictions, Robinson waived his right to collaterally attackthe 2015 convictions. We disagree. “A guilty plea generally insulates the defendant’s conviction from collateral attack.” Statev. Knight, 162 Wn.2d 806, 811, 174 P.3d 1167 (2008). There are, however, exceptions to the general rule, and particularlywhere ‘on the face ofthe record the court had no powerto enterthe conviction or impose the sentence.” U.S. v. Broce, 488 U.S. 563, 569, 109 5. Ct. 757, 102 L. Ed. 2d 927 (1989). This includes a facial violation ofdoublejeopardy. As our Supreme Court summarized in Knight, Claims that go to the very powerofthe State to bring the defendant into courtto answerthe charge brought against him are notwaived by guilty pleas. The doublejeopardy clause precludes the State from haling a defendant into court on a charge and is notwaived by a guilty plea. After the guilty plea the doublejeopardyviolation must be clearfrom the record presented on appeal, orelse be waived. Butwhere a doublejeopardy violation is clearfrom the record, a conviction violates doublejeopardy even where the conviction is entered pursuantto a guilty plea. 162 Wn.2d at 811-12 (internal quotations and citations omitted). -9-No. 76648-1-1/10

As discussed above, Robinson’s 2015 convictions forviolation ofa no-contact orderviolate doublejeopardy and this violation is clearfrom the record. The determination for certificate of probable cause describes only a single act—the October 22, 2015 assault of Ericka. Robinson’s plea statement recognized only a single criminal act and a fictitious actthat Robinson was informed was allowed underZhao. And finally, the trial courtfound that Robinson’s convictions were from a “straight plea” based on the October22, 2014 assault, and thatthe “parties furtheragree thatthere is
no factual basis to support a second conviction for DomesticViolence Misdemeanor Violation ofa Court Order.” Because the doublejeopardyviolation is clearfrom the record, Robinson did notwaive his rightto collaterally attackthe validity2015 convictions. Consequently, because Robinson may collaterally attackthe 2015 convictions, and because the second fictitious 2015 conviction must be vacated as violating the doublejeopardy clause, we conclude that based on the record before us, the State failed to prove the existence ofthe two predicate misdemeanorviolations ofa nocontact orderthat supported Robinson’s 2016 felonyviolation ofa no-contact order. We reverse.6

/ WE CONCUR:

6 Becausewe reverse Robinson s conviction, we do not reach Robinson’s claims thatthe trial court refused to consider his requestforan exceptional sentence, orthatthe trial court improperly considered his previous assault during sentencing, and that imposition ofa $100 fee forcollection of DNA was improper under RCW43.43.7541 and State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). -10-