IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 47238-4-II

Respondent,

v.

LIA YERA TRICOMO, UNPUBLISHED OPINION

Appellant.

LEE, J. — Lia Yera Tricomo pleaded guilty to second degree murder, three counts of 

second degree assault, and second degree taking a motor vehicle without owner’s permission. 

Tricomo appeals, arguing that her convictions violate double jeopardy, her plea was not entered 

voluntarily, and that the trial court erred in not considering evidence at sentencing. We disagree 

and affirm. 

FACTS

Tricomo and the victim, her former counselor, had a sexual encounter at the victim’s home 

in the upstairs bedroom. Following the sexual encounter, Tricomo repeatedly slit the victim’s 

throat with a razor knife. Tricomo acknowledged that she brought the knife to the upstairs 

bedroom in preparation to kill the victim. For several hours after having his throat slit, the victim 

“walked around the house,” attempting to stop the bleeding. Clerk’s Papers (CP) at 5. Tricomo, 

concerned that the victim would attempt to leave the house, struggled with the victim over the 

razor knife at the entryway. The victim’s wrists were cut in the struggle. The victim then went 

Filed

Washington State

Court of Appeals

Division Two

April 26, 2016
No. 47238-4-II

2

back upstairs to the bedroom, and Tricomo strangled him with an electrical extension cord, killing 

him.

The State charged Tricomo with second degree murder and three counts of second degree 

assault.1 At the plea hearing, the trial court informed her that the applicable maximum term of 

confinement for the second degree murder charge was a life sentence, the “standard range of actual 

confinement was 257 to 357 months,” and the State would recommend a sentence of 357 months. 

Verbatim Report of Proceedings (VRP) (Nov. 6, 2014) at 7. Tricomo acknowledged that she 

understood.

At sentencing, Tricomo offered an expert report that included a discussion of the effects of 

Tricomo’s medication. The trial court ruled that it would consider the expert’s report for purposes 

of background information, but that it would disregard the expert’s discussion of medication 

because “I don’t find that [the expert] has any expertise in that particular area and she basically

only sets forth a number of articles suggesting that they may have some relevance.” VRP (Jan. 

28, 2015) at 39. The trial court reviewed letters from individuals in support of Tricomo, two 

reports from Western State Hospital, and portions of Tricomo’s expert’s report. The trial court 

noted that the “issue before me today is not whether or not Ms. Tricomo had the ability to form a 

specific intent to kill. That’s been established by her pleading guilty to this charge.” VRP (Jan. 

28, 2015) at 92. Ultimately, the court sentenced Tricomo to 357 months, which was within the 

standard sentencing range. Tricomo appeals.

 

1 The State also charged Tricomo with second degree taking a motor vehicle without the owner’s 

permission. The morning after Tricomo strangled the victim, she left the victim’s home in the 

victim’s vehicle. The conviction for second degree taking a motor vehicle is not at issue in this 

appeal.
No. 47238-4-II

3

ANALYSIS

A. DOUBLE JEOPARDY

Tricomo argues that double jeopardy bars her convictions for three counts of second degree 

assault, and her convictions for second degree assault and second degree murder. Tricomo did not 

raise the double jeopardy argument below, but a constitutional challenge may be raised for the first 

time on appeal. State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998); see accord State v. 

Reeder, 181 Wn. App. 897, 925-26, 330 P.3d 786 (2014), review granted in part, 337 P.3d 325,

aff’d, 184 Wn.2d 805, 365 P.3d 1243 (2015).

Both the federal and state double jeopardy clauses protect against multiple punishments for 

the same offense. U.S. CONST. amend. V; WASH. CONST. art. I, § 9; State v. Hart, 188 Wn. App. 

453, 457, 353 P.3d 253 (2015). Generally, a guilty plea will insulate the defendant’s conviction 

from collateral attack. State v. Knight, 162 Wn.2d 806, 811, 174 P.3d 1167 (2008). A guilty plea 

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.’” Knight, 162 

Wn.2d at 811 (quoting Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 

(2004)). But claims that go to “‘the very power of the State to bring the defendant into court to 

answer the charge brought against him,’” like the double jeopardy clause, are not waived by guilty 

pleas. Knight, 162 Wn.2d at 811 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 

40 L. Ed. 2d 628 (1974)); see Menna v. New York, 423 U.S. at 62, 96 S. Ct. 241, 46 L. Ed. 2d 195 

(1975). After a defendant pleads guilty, “the double jeopardy violation must be clear from the 

record presented on appeal, or else be waived.” Knight, 162 Wn.2d at 811.
No. 47238-4-II

4

We review alleged violations of double jeopardy de novo. State v. Villanueva-Gonzalez, 

180 Wn.2d 975, 980, 329 P.3d 78 (2014). Different double jeopardy analyses apply depending on 

whether the convictions at issue were under the same statutory provision or different statutory 

provisions. Villanueva-Gonzalez, 180 Wn.2d at 980. Where a defendant has multiple convictions 

under the same statutory provision, we apply the “unit of prosecution” analysis. VillanuevaGonzalez, 180 Wn.2d at 980. But when a defendant has convictions under different statutes, we

apply the same evidence analysis.2 State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995).

1. Three Counts of Second Degree Assault

Tricomo was convicted of three counts of second degree assault pursuant to RCW 

9A.36.021. Because the second degree assault convictions arise from the same statutory provision, 

we apply the “unit of prosecution” analysis. Villanueva-Gonzalez, 180 Wn.2d at 980-81.

Tricomo argues that her acts constituted a single criminal episode driven by the singular 

intent to kill the victim. Tricomo argues that because her acts were a single criminal episode, she 

could only be convicted of one count of assault, or two at the most, but definitely not three.

Tricomo was charged, in relevant part, with three counts of second degree assault3

stemming from the events of one evening. Count II charged second degree assault based on the 

“use of a razor knife to inflict neck wounds.” CP at 25. Count III charged second degree assault 

 

2 The same evidence test mirrors the federal “same elements” standard adopted in Blockburger v. 

United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Gocken, 127 Wn.2d 

95, 107, 896 P.2d 1267 (1995).

3 RCW 9A.36.021(1)(a), (c).
No. 47238-4-II

5

based on the “use of a razor knife to inflict facial wounds.” CP at 25. And count IV charged 

second degree assault based on the “use of a razor knife to inflict hand wounds.” CP at 25.

Tricomo pleaded guilty as charged and agreed that the trial court could rely on the State’s 

statement of probable cause and police reports to find the facts necessary to establish a factual 

basis for her plea. The trial court found that a sufficient factual basis existed in the record before 

it to accept the plea.

a. Count III (facial wounds)

The statement of probable cause does not include any information about count III, the 

assault charge based on infliction of facial wounds. And, the record does not contain any police 

reports. It is the appellant’s burden to provide a sufficient record for us to review. See State v. 

Gomez, 183 Wn.2d 29, 34, 347 P.3d 876 (2015). Because a double jeopardy violation is not clear 

from the record presented on review, we hold that Tricomo waived her challenge to count III, the 

second degree assault conviction based on the use of a razor knife to inflict facial wounds. Knight, 

162 Wn.2d at 811.

b. Count II (neck wounds) and Count IV (hand wounds)

Tricomo argues that “it is clear from the facts” that her acts “constituted a single criminal 

episode driven by the singular intent to kill” the victim. Br. of Appellant at 9. Tricomo also 

acknowledges that the facts may support two assault counts. But the record shows that the two 

assaults were separate courses of conduct. 

Assault is a course of conduct crime, which “‘helps to avoid the risk of a defendant being 

‘convicted for every punch thrown in a fistfight.’” Villanueva-Gonzalez, 180 Wn.2d at 985

(quoting State v Tili, 139 Wn.2d 107, 116, 985 P.2d 365 (1999)). Thus, if multiple assaultive acts 
No. 47238-4-II

6

constitute only one course of conduct, then double jeopardy protects against multiple convictions. 

Villanueva-Gonzalez, 180 Wn.2d at 985. There is no bright-line rule for when multiple assaultive 

acts constitute one course of conduct. Villanueva-Gonzalez, 180 Wn.2d at 980-81. In determining 

whether multiple assault acts constitute one course of conduct, we consider the length of time over 

which the acts occurred, the location of the acts, the defendant’s intent or motivation for the 

assaultive acts, whether the acts were uninterrupted, and whether there was an opportunity for the 

defendant to reconsider her acts. Villanueva-Gonzalez, 180 Wn.2d at 980-81. No single “factor 

is dispositive, and the ultimate determination should depend on the totality of the circumstances, 

not a mechanical balancing of the various factors.” Villanueva-Gonzalez, 180 Wn.2d at 985.

Here, the assaultive acts occurred over several hours and in different places in the victim’s 

home. According to Tricomo, there were hours in between the act of slitting the victim’s throat 

and cutting the victim’s wrists. Further, Tricomo’s account of the events indicate that her 

motivation for the two attacks was different. Tricomo stated that she brought the knife with her 

into the upstairs bedroom “as preparation to kill” the victim, but that she cut the victim’s wrists 

because the victim was attempting to take the knife from her. CP at 5. And, she had considerable 

time to reconsider her actions. For instance, she had time to reconsider during the “hours” the 

victim spent walking around the house after she slit his throat in the upstairs bedroom and before 

she cut his wrists during the struggle at the entryway. See CP at 5. Considering the totality of the 

circumstances, the assault that resulted in neck wounds was a separate course of conduct from the 

assault that resulted in wrist wounds. Therefore, Counts II and IV do not violate double jeopardy.
No. 47238-4-II

7

2. Second Degree Murder and Second Degree Assault

Tricomo was charged with second degree murder under RCW 9A.32.050(1)(a), and three 

counts of second degree assault under RCW 9A.36.021(1)(a) and (c). Tricomo contends that the 

murder and assaults “arose from a single course of conduct and constitute the same offense.” Br. 

of Appellant at 10. Tricomo misconstrues the double jeopardy analysis for multiple convictions 

under separate statutes. 

To determine if a defendant’s convictions under different statutes violate double jeopardy, 

we apply the same evidence test. Calle, 125 Wn.2d at 777; Villanueva-Gonzalez, 180 Wn.2d at

980-81. The same evidence analysis asks whether the convictions were the same in law and in 

fact. Calle, 125 Wn.2d at 777; accord Villanueva-Gonzalez, 180 Wn.2d at 980-81. “If there is an 

element in each offense which is not included in the other, and proof of one offense would not 

necessarily also prove the other, the offenses are not constitutionally the same and the double 

jeopardy clause does not prevent convictions for both offenses.” Calle, 125 Wn.2d at 777 (quoting 

State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983)).

Tricomo was charged with second degree murder under RCW 9A.32.050(1)(a), one count 

of second degree assault under RCW 9A.36.021(1)(a), and two counts of second degree assault 

under RCW 9A.36.021(1)(c). A person commits second degree assault under RCW 9A.36.021

when:

(1) . . . he or she, under circumstances not amounting to assault in the first degree:

(a) Intentionally assaults another and thereby recklessly inflicts substantial 

bodily harm; or

. . . .

(c) Assaults another with a deadly weapon.
No. 47238-4-II

8

Because assault is not defined in the criminal code, courts have turned to the common law 

for its definition. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009); State v. Kier, 164 

Wn.2d 798, 806, 194 P.3d 212 (2008). Three definitions of assault are recognized in Washington: 

(1) an unlawful touching (actual battery); (2) an attempt with unlawful force to inflict bodily injury 

upon another, tending but failing to accomplish it (attempted battery); and (3) putting another in 

apprehension of harm. Elmi, 166 Wn.2d at 215.

A person commits second degree murder under RCW 9A.32.050(1)(a) when:

With intent to cause the death of another person but without premeditation, he or 

she causes the death of such person or of a third person.

Tricomo’s convictions for second degree murder and second degree assault are legally 

different. Proof of second degree assault does not necessarily prove second degree murder because 

a person can assault another person without actually causing death. Second degree murder, on the 

other hand, requires proof of intent to cause death, and actual death. Therefore, the convictions 

are not the same in law.

Also, Tricomo’s convictions for second degree assault and second degree murder are 

factually different. As discussed above, Tricomo’s assault convictions arise from her acts of 

assaulting the victim with a razor knife. But Tricomo’s second degree murder conviction arises 

from her strangling the victim with an electrical extension cord.

Thus, Tricomo’s murder and assault convictions are not the same in law and in fact. While 

it is true that the convictions are based on Tricomo’s actions from a particular day, they are based 

on different laws and actions. Tricomo’s double jeopardy challenge fails.
No. 47238-4-II

9

B. CONSEQUENCES OF GUILTY PLEA

Tricomo argues that she should be able to withdraw her guilty plea because she was 

misinformed about the maximum sentence in her guilty plea. We disagree. 

Due process requires that a defendant’s guilty plea be made knowingly, voluntarily, and 

intelligently. State v. Kennar, 135 Wn. App. 68, 72, 143 P.3d 326 (2006). CrR 4.2 precludes a 

trial court from accepting a guilty plea without first determining that the defendant is entering the 

plea voluntarily, competently, and with an understanding of the nature of the charge and the 

consequences of the plea. Kennar, 135 Wn. App. at 72.

Here, Tricomo pleaded guilty to second degree murder. At the plea hearing, the trial court 

informed her that the applicable maximum term of confinement was a life sentence and the 

“standard range of actual confinement was 257 to 357 months,” with the State recommending a 

sentence of 357 months. VRP (Nov. 6, 2014) at 7. Tricomo acknowledged that she understood. 

The court then sentenced Tricomo within the standard range.

Tricomo contends that her plea was not made knowingly, voluntarily, and intelligently 

because the trial court misinformed her of the applicable maximum sentence for the offense with 

which she was charged. Tricomo asserts that the applicable maximum sentence was the top end 

of the standard range, not the statutory maximum sentence declared by the legislature. Citing 

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Tricomo claims 

that the trial court misinformed her when it told her that life imprisonment was the applicable 

maximum sentence for second degree murder. 

Kennar rejected Tricomo’s precise argument. Kennar, 135 Wn. App. at 72. In Kennar, 

the court held that “CrR 4.2 requires the trial court to inform a defendant of both the applicable 
No. 47238-4-II

10

standard sentence range and the maximum sentence for the charged offense as determined by the 

legislature.” Kennar, 135 Wn. App. at 75. The Kennar court, noting that Blakely is a sentencing 

case, not a plea-entry case, held:

Because a defendant’s offender score and standard sentence range are not finally 

determined by the court until the time of sentencing, the Sixth Amendment 

concerns addressed in Blakely do not apply until that time. Thus, when Kennar 

entered his guilty plea, the maximum peril he faced was, in fact, life in prison. He 

was correctly informed of this by the trial court. His plea was knowingly, 

intelligently, and voluntarily entered. There was no error.

Kennar, 135 Wn. App. at 76. 

Similarly here, at the time of her plea, Tricomo was informed of the maximum sentence 

and the standard sentence range for the charged offense. Kennar controls, and Tricomo’s plea was 

entered knowingly, intelligently, and voluntarily. 

C. EVIDENCE AT SENTENCING

Tricomo argues that the trial court erred in refusing to consider relevant evidence at 

sentencing. We disagree.

“As a general rule, the length of a criminal sentence imposed by a superior court is not 

subject to appellate review,” as long as the sentence is within the standard range.4 State v. 

Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). Tricomo was sentenced within the standard 

range. However, even if we consider whether the trial court erred in not considering Tricomo’s 

evidence, her argument fails. 

 

4 We may review the sentence where a defendant requests an exceptional sentence below the 

standard range if the court abused its discretion by either refusing to exercise its discretion or relied 

on an impermissible basis for refusing to impose an exceptional sentence. State v. Khanteechit, 

101 Wn. App. 137, 138, 5 P.3d 727 (2000). Here, however, Tricomo did not request an exceptional 

sentence below the standard range and was sentenced within the standard range.
No. 47238-4-II

11

In Tricomo’s sentencing brief, Tricomo asked the court to consider evidence regarding her 

background, urging the court to sentence her at the low end of the standard range. Tricomo argues 

that “the court refused to consider any opinion as to the appropriate sentence.” Br. of Appellant 

at 18. Tricomo fails to provide any authority suggesting that the sentencing court is required to 

consider an expert’s opinion about “the appropriate sentence” where the defendant does not request 

an exceptional sentence. “Where no authorities are cited in support of a proposition, the court is 

not required to search out authorities, but may assume that counsel, after diligent search, has found 

none.” DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Thus, 

Tricomo’s argument fails.

Tricomo next argues that the trial court erred by not considering the experts’ opinions about 

the effects of Tricomo’s medications. The trial court ruled that it would disregard the expert’s 

discussion of medication, because “I don’t find that [the expert] has any expertise in that particular 

area and she basically only sets forth a number of articles suggesting that they may have some 

relevance.” VRP (Jan. 28, 2015) at 39. Tricomo fails to provide any argument as to how the trial 

court erred. Therefore, we do not consider this argument. RAP 10.3; Cowiche Canyon 

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

Finally, Tricomo argues that she should have been able to present more evidence about her 

culpability for the crimes because the sentencing court should be concerned with whether the 

punishment is proportional to the culpability. Culpability is determined by the charge and 

conviction. See State v. Johnson, 180 Wn.2d 295, 306, 325 P.3d 15 (2014). And the legislature, 

in determining the sentencing range, accounts for culpability and dangerousness. State v. Jordan, 

180 Wn.2d 456, 460, 325 P.3d 181 (2014). Tricomo provides no authority suggesting that during 
No. 47238-4-II

12

sentencing, where the defendant does not request an exceptional sentence below the standard range 

based on mitigating circumstances, the trial court should readdress and reestablish a defendant’s 

culpability for an offense that the defendant has pleaded guilty to. Again, Tricomo’s argument 

fails. See DeHeer, 60 Wn.2d at 126.

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 

2.06.040, it is so ordered.

Lee, J.

We concur:

Worswick, J.

Bjorgen, C.J.