### FILED 

# COURT OFAPPEALS IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO 

### VISI0N II 

# 2015FEB 18 M 9: 21 STATE OF WASHINGTON,

v. JERRY LYNN DAVIS, DIVISION II Respondent,

Appellant. No. 45274 - 0-11 consolidated with 8 No. 45280 -

4 -II STYkT • 

## k ASHI TON

UNPUBLISHED OPINION
MELNICK, J. — 

### Jerry Lynn Davis appeals his conviction of attempted burglary in the second degree, arguing that the trial court erred 

### by finding a factual basis for his guilty plea. In his statement of additional grounds ( SAG), Davis further alleges that he received ineffective 

### assistance ofcounsel before and during the plea proceedings. We affirm his conviction. FACTS 

### The State charged Davis with burglary inthe second degree and felonyharassment. Afew months later,the State charged him in a separate information with trafficking in stolen property in the first degree and theft of a motor vehicle. 

### Davis eventually agreed to enter an Alford' plea to an amended charge of attempted 

### burglary in the second degree in the first case, and to plead separately to the amended charge of 

### taking amotorvehiclewithoutpermission inthe seconddegree inthe second case. Thetrial court found that a factual basis supported the Alford plea and that each plea was entered freely, knowingly, and voluntarily. The trial court imposed concurrent sentences of 40 months on the 

### attempted burglary conviction and 29 months on the motorvehicle conviction. Davis now appeals his attempted burglary conviction.

1 North Carolina v. Alford,400 U. S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).45274 - 0 -II /45280 -

4 -II ANALYSIS I. FACTUAL BASIS 

### Davis contends thatthetrial court erred byfinding thatafactual basis existed forhisAlford 

### plea to attempted burglary in the second degree. He adds that because he did not understand that the alleged facts would not support his conviction, his plea was not knowing, voluntary, and intelligent. Because this challenge has constitutional implications, we address its merits for the first time on appeal. RAP 2.5( a)(3); 

### In re Pers. Restraint ofHews, 108 Wn.2d 579, 592, 741 P.2d 983 ( 1987). 

### A conviction based on a guilty pleathat is not knowing and voluntary is constitutionally invalid. State v. Chervenell, 99 Wn.2d 309, 312, 662 P. 2d 836 ( 1983). 

### A guilty plea is not truly 

### voluntary " unless the defendant possesses an understanding ofthe law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 ( 1969). Toward this end,the trial court must determine thatthe conductthe defendant admits constitutes the offense charged. In re Pers. Restraint ofBratz, 101 Wn. App. 662, 672, 5 P.3d. 759 ( 2000). The trial court' s determination that a factual basis exists for the plea does not require that the court be convinced ofadefendant' s guiltbeyond areasonable doubt,but onlythat sufficient evidence exists to sustain ajury finding of guilt. State v. ` Newton, 87 Wn.2d 363, 370, 552 P. 2d 682 ( 1976); State

v. Amos, 147 Wn.App. 217, 228, 195 P. 3d 564 (2008), abrogated sub silentio on other graounds, State v. Hughes, 166 Wn.2d 675, 212 P. 3d 538 (2009). 

### In determining factual basis, the court may 

### consider any reliable source ofinformation as long as it is in the record. Amos, 147 Wn.App. at 228; State v.Arnold,81 Wn.App. 379, 382, 914 P.2d 762 ( 1996).

245274 - 0 -II /45280 -

4 -II 

### In entering his Alford plea, Davis did not admit to committing attempted burglary in the second degree but acknowledged that ajury could find him guilty based on the facts set forth in the probable cause statement. That statement alleged that the victim saw Davis and two accomplices approach the victim' s U - Haul, where the victim stored car parts. Davis and another
man opened the back of the U - Haul and pulled. out a radiator and two buckets. When the victim yelled at them to get on the ground, Davis tried to pull a metal pipe free before fleeing. A car owned 

### by one of his accomplices was parked at the victim' s locked gate. The probable cause statement concluded as follows:



### Perthe victim, his property is fenced where it can be fenced, and there is a steep natural barrier that cannot be fenced. The U - Haul was parked within the fenced area. The gate to the fence is locked and there was a no trespassing sign posted right where the defendants' vehicle was parked. Clerk' s Papers at 4. 

### Aperson is guilty ofburglaryinthe second degree if,with intentto commitacrime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52. 030( 1). In addition to its ordinary meaning, "[ b] uilding" 

### includes " any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure 

### used for lodging ofpersons or for carrying on . business therein, or forthe use, sale, or deposit of goods[.]" RCW 9A.04. 110(5). 

### A person is guilty ofan attempt to commit a crime if,with intent to commit a specific crime, he takes a substantial step toward committing that crime. RCW 9A.28.020( 1).

345274 - 0 -II / 45280 -

4 -II Davis contends that the facts in the probable cause statement were insufficient to showthat 

### he entered or attempted to enter a building because the victim's property was not a fenced area under RCW 9A.04. 110( 5). We reject this contention. Davis entered an Alford plea that permitted 

### the trial court to rely on the probable cause statement in finding a factual basis forthe plea. That 

### statement clearly provided thatthe U - Haul was parked in a fenced area. Therefore,we find that a sufficient factual basis exists for Davis' s plea to attempted burglary in the second degree and we reject his challengeto the validity ofhis plea. II. SAG In his SAG, Davis argues that he received ineffective assistance of counsel when his 

### attorney did not investigate the facts in the probable cause statement supporting his attempted burglary charge. 

### Davis contends further that his attorney did not depose and subpoena key witnesses. A defendant whose guilty plea was validly entered generally waives complaints about alleged errors that occurred before entry of the plea. 

### Garrison v. Rhay, 75 Wn.2d 98, 101, 449 P. 2d 92 ( 1968); In re Pers. Restraint ofTeems, 28 Wn. App. 631, 637, 626 P. 2d 13 ( 1981). We 

### note furtherthatwhen Davis pleaded guilty, he acknowledgedthat hewas waiving his rightto call 

### witnesses to testify on his behalf. Having upheld the validity ofDavis' s plea and its underlying factual basis, we need not consider his claim of ineffective assistance of counsel.

445274 - 0 -II /45280 -

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 2.06.040, it is so ordered.

We concur:

5 Melnick,J. r%