FILED 00UF;rIF APPEALS DI vlw II

2013 JUL -- 9 A ., 10

IN THE COURT OF APPEALS OF THE STATE OF WASHIN

HfP,GT

DIVISION II

STATE OF WASHINGTON,

By

No. 43397 -4 -II

Respondent,

V.

JAMES LIONEL McCLURE, UNPUBLISHED OPINION

JOHANSON, A. J. —CJames Lionel McClure appeals his conviction for second degree

unlawful possession of a firearm. He argues that he did not understand the mens rea element of

the crime when he entered an Alford /Newton guilty plea. Because the information advised him

of the legal elements of the crime and the factual recitation provided further notice of the

knowledge element, we affirm.

FACTS

On February 3, 2009, Wal -Mart loss prevention officers observed McClure cutting open

packaged merchandise and concealing the merchandise on his person. The officers confronted

McClure outside the store after he exited without paying for any items. The officers detained

McClure and "[d]uring the scuffle a functional .357 Magnum Revolver, loaded with six rounds"

fell out of McClure's pocket. ' Suppl. Clerk's Papers (CP) at 37. McClure was arrested and

s North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton,

87 Wn.2d 363, 552 P.2d 682 (1976).

2 A commissioner of this court initially considered this appeal as a motion on the merits under

RAP 18.14 and then referred it to a panel ofjudges.
No. 43397 -4 -II

admitted to possessing the gun; he said he found it in some bushes in Portland." Suppl. CP at

37.

The State charged McClure with first degree attempted robbery and second degree

unlawful possession of a firearm in violation of RCW 9. 040. 41 The information alleged that

McClure "did knowingly own or have in his possession or control a firearm." Suppl. CP at 35.

The State later added charges for bail jumping and third degree retail theft and added a firearm

enhancement to the robbery charge. It did not amend the firearm possession charge.

On April 11, 2012, McClure entered an Alford/Newton guilty plea to the unlawful

possession of a. firearm charge. The State dismissed the remaining charges and recommended a

51 -month sentence. In his written statement on plea of guilty, McClure acknowledged that he

received the Information. He also wrote, "That I James McClure ... did knowingly or have [sic]

in my possession ,or control a firearm to wit a pistol." Suppl. CP at 39. He additionally

conceded that:

T]he State has evidence from which a jury could conclude that I had on my

person or possession a firearm or pistol on Feb 3rd 2009 ... after having been

previous [1y] convicted of several felonies in Oregon which would make me guilty

ofthe crime of unlawful poss. of a firearm in the second degree.

Suppl. CP at 46. The State submitted a statement of facts on the Alford /Newton plea detailing

the circumstances leading to McClure's arrest.

3 RCW 9. 040( a) 41. 2(provides, in part:

2)(a) A person, whether an adult or juvenile, is guilty of the crime of

unlawful possession of a firearm in the second degree, if the person does not

qualify under subsection (1) of this section for the crime of unlawful possession

of a firearm in the first degree and the person owns, has in his or her possession,

or has in his or her control any firearm:

i) After having previously been convicted . of any felony not

specifically listed as prohibiting firearm possession under subsection (1) . of this

section ....

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No. 43397 -4 -II

The trial court accepted McClure'sAlford /Newton plea and sentenced him to 55 months

in custody. McClure appeals his conviction.

ANALYSIS

McClure argues that the record does not demonstrate that he understood the mens rea

element of unlawful possession of a firearm and, thus, his Alford /Newton plea was involuntary.

He seeks to withdraw his plea.

I. Standard of Review

Generally, a defendant waives any issues not raised in the trial court. RAP 2. a). 5(But a

defendant may raise alleged "manifest error[s] affecting [ ] constitutional right[s]" for the first

time on appeal. RAP 2. a)(5( 3). An allegedly involuntary plea is the type of constitutional error

that can be raised for the first time on appeal. State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591

2001). " The State bears the burden of proving the validity of a guilty plea." State v. Ross, 129

Wn.2d 279, 287, 916 P.2d 405 (1996).

II. McClure'sPlea

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

intelligent." In re Pers. Restraint oflsadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004).

In order for a guilty plea to be accepted' as knowing, intelligent and voluntary, the

accused must be apprised of the nature of the charge. At a minimum, "the

defendant would need to be aware of the acts and the requisite state of mind in

which they must be performed to constitute a crime."

In re Pers. Restraint ofMontoya, 109 Wn.2d 270, 278, 744 P.2d 340 (1987) (citations omitted)

quoting State v. Holsworth, 93 Wn.2d 148, 153. n.3, 607 P.2d 845 ( 1980)). To obtain a

conviction for second degree firearm possession, the State has the burden of proving that the

possession was "knowing." State v. Anderson, 141 Wn.2d 357, 364 -66, 5 P.3d 1247 (2000).

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No. 43397 -4 -II

McClure here argues that he did not receive notice of the mens rea element because he

only acknowledged that he "knowingly" possessed or "ha[d] [a firearm] in [his] possession or

control" and because the court did not advise McClure of the mens rea element in open court

during his Alford /Newton plea colloquy. Br. of Appellant at 6 -7; Suppl. CP at 39. The record

shows, however, that McClure was aware of the mens rea required to constitute the crime

because he received a copy of the information containing the mens rea requirement prior to

entering his plea. Montoya, 109 Wn.2d at 278. The information alleged that McClure "did

knowingly own or have in his possession or control a firearm." Suppl. CP at 35; CP at 2. In his

statement on plea of guilty, McClure acknowledged receiving a copy of the information.

McClure additionally stated that he fully discussed his statement on plea of guilty with his

attorney. We consequently hold that McClure had notice of the mens rea element before he

entered his Alford /Newton plea. In re Pers. Restraint ofKeene, 95 Wn.2d 203, 207 -08, 622 P.2d

360 (1980).

In addition, when he was arrested, McClure admitted that he found the pistol in Portland

and thereafter possessed it. During his plea colloquy, the State presented this evidence in

support of McClure'sAlford /Newton plea. This evidence "describe[s] . . . intentional, as

opposed to accidental" possession of the.firearm. State v. Osborne, 102 Wn.2d 87, 94, 684 P.2d

683 (1984). Thus, the State informed McClure of "facts gathered by the State from which a trier

of fact could easily find the requisite `knowledge. "' Osborne, 102 Wn.2d at 94. Accordingly,

we hold that McClure'sAlford/Newton plea was knowing, intelligent, and voluntary because the

information advised him of the legal elements of the crime and the factual recitation provided

further notice of the knowledge element. Osborne, 102 Wn.2d at 93 -94.

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No. 43397 -4 -II

We affirm.

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. 040, 06.it is so ordered.

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Johanson, A. J.C

We concur:

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