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COURT OF APPEALS

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IN THE COURT OF APPEALS OF THE STATE OF WASH]

DIVISION II

STATE OF WASHINGTON, No. 42356 -1 -II

Respondent,

V.

DATRION ISREAL NEWTON,

2013 MAR 26 AN 9: 28

d Sl-11I1 TO

By

E7'.Z

UNPUBLISHED OPINION

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

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 ofjustice:

The victim, Donald McCaney, was Defendant'sclose 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 (CP) at 12.

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

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 "substantial likelihood" he would be convicted at trial. CP at.21.

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 - of - the important

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.2d 363, 372, 552 P.2d 682 (1976) (adopting North Carolina v.

Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)) ( defendant may plead guilty while

disputing facts alleged by prosecution).

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No. 42356 -1 -II

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. a). 5(This rule does not, however, preclude review of an issue,

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

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

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

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. 050( b). 32. 1)(

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

h]e or she commits or attempts to commit any felony, including assault, other

than those enumerated in RCW 9A. 030( e), 32. i)(and, in the course of and in

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. 050( b), 32. 1)(According to Newton, the statute is ambiguous about whether a

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

murder. Brief of Appellant, at 6. See State v. Lively, 130 Wn.2d 1, 14, 921 P.2d 1035 (1996)

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

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.2d 602, 56 P.3d 981 (2002); former RCW 9A. 050( b) ( 32. 1)(1976).

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

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

act. 147 Wn.2d at 610. 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. 050, 32.a conviction of second

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

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

A conviction under former RCW 9A. 05032.resting on assault as the underlying felony is not a

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.3d 1048. The following statement of

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 "in furtherance

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

findings of legislative intent in State v. Andress, Docket No. 71170 -4 (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'sconstruction of the former second degree felony murder

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

9A. 050( b). 32. 1)(As stated, Newton asserts that the only way to cure this ambiguity is to

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.2d at 609 (citing State v. Leech, 114 Wn.2d 700, 709, 790

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

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

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

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

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

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

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No. 42356 -1 -II

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 ofBowman, 162

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

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

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

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

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'sprovince. Gordon, 153 Wn.

App at 527. The legislature'sexpress assertion that anassault 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'splea of guilty to

second degree felony murder based, on second degree assault.

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No. 42356 -1 -II

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

2. 040, 06.it is so ordered.

We concur:

6anson, 2'J.

B' ken

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