### FILED July 19, 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill
INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. MATTHEWHENRYDEVORE, Appellant. ) ) ) ) ) ) ) ) ) No. 33106-7-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.C.J. -WegrantedMatthewDeVore'srequest for discretionary review to determine whetherthe trial court erred in withdrawingMr. DeVore's valid guilty pleaand allowing the State to file an amended information. We conclude thatthe trial courterred and remand this matterto allow Mr. De Voretoplead guilty to the original information. FACTS OnNovember 24, 2014, a stabbing occurred at a business in Kennewick, Washington. Atthe scene, thepolice briefedthe respondingprosecutors and informed them the suspect, Mr. De Vore, was in custody. Laterthat day, SergeantRandy Maynard calledtheprosecutors and summarizedthe statementMr. DeVore gave thepolice.No. 33106-7-III 

### State v. DeVore According to SergeantMaynard, Mr. DeVore admitted he stabbed Thomas Christian but insisted his contact with Mr. Christian had been inadvertent, and he had been continually carrying the knife he used to stab Mr. Christian for several weeks. On November 26, the police briefed the prosecutors again and included witness statements that called into question whetherMr. DeVore always carried the knife he used to stab Mr. Christian. Duringthe briefing, the State decided to charge Mr. De Vore with second degree murder based on his statement and the autopsy reports, but agreed to continue investigating whether the stabbing was premeditated. That same day, the State charged Mr. DeVore with second degree murder with an aggravating circumstance of impact on others. The business where the stabbing occurred gave Sergeant Maynard a video ofthe incident, which SergeantMaynard delivered to the prosecutors after the State filed the information. The prosecutors watched the video and agreed the video contradicted Mr. DeVore's statementthat his contact with Mr. Christian at the business was inadvertent. The prosecutors agreed they would likely end up charging Mr. DeVore with first degree murder based on the increasing evidence ofpremeditation. The prosecutors decided to wait to file the amended information until they had additional written statements and reports, but agreed to file an amended information ifMr. De Vore attempted to plead
2No.331°06-7-III State v. DeVore guilty. On December 3, defense counsel met with Mr. DeVore for several hours, and the two went overMr. DeVore's statement on plea ofguilty. On December4, the trial court held a hearing to arraign Mr. DeVore. Atthe beginning ofthe hearing, defense counsel stated that Mr. DeVore wished to enter a guilty plea and handed forward the statement ofdefendant on plea ofguilty. The State then moved to file an amended information charging Mr. DeVore with first degree murder with an aggravating circumstance ofimpact on others. The State and defense counsel disputed whether Mr. DeVore had entered a valid guilty plea and whetherthe State could amend the information at that point. The trial court continuedthe arraignment so the parties could briefthe issue. The trial court held another hearing on December 22. The trial court advised it had reviewed the relevant case law, includingMartin 1and Ford. 2 The trial court concluded that, under Ford, the State may not amend an information under CrR 2.l(d) ifamending the information would prejudice the defendant's substantial rights. The trial court found that continuing the arraignment to obtain legal authority on the question ofwhether the State was permitted to amend the informationprejudiced Mr. DeVore's substantial right

1State v. Martin, 94 Wn.2d 1,614P.2d 164 (1980). 2 State v. Ford, 125 Wn.2d 919,891 P.2d 712 (1995). 3No. 33106-7-III State v. DeVore

to plead guilty at the time ofarraignment. Thetrial court denied the State's motion to amendthe information. The trial courtthen gave Mr. DeVore an opportunity to plead guilty to second degree murder. Thetrial court conducted a plea colloquyto determine whether Mr. DeVore'spleawas knowing, intelligent, and voluntary. Thetrial courtthen askedMr. De Vore to supplementthe factual basis for the plea in his ownwords. Mr. De Vore gave
a verbal description ofthe incident: [Mr. DeVore]: Yes, sir. I never, I never intended to--forwhat happened happen. I was under a lot ofduress for some number ofmonths and I tried to avoid Mr. Christianson [sic]. And on the day that-onthe 24th, when I wentthere, I was trying to getthere early to avoid him. And I did not intend to meet him in any way, but rather to avoid him. And I was under a lot of, a lot ofemotional duress, missing my children. And unfortunately I tried to confront him to talkto him about it. And, and I don't knowwhathappened, sir, but-justour conversation was an ongoing conversation betweenus that always seemed to go wrong. And Ijust-atthat moment, I-something came overme. It was like getting hit by a lightning bolt. And after it happened, I didn't evenreally recognize what had happened until later. I was in shock, I think, for an entire week
....

. . . And that moment when I was standing there, I tried to talkto him and tell him-I was basically trying to tell himthat I wanted to see my kids, butunfortunately it came outwrong and I was angry.

4No. 33106-7-III 

### State v. DeVore
And when we started talking, and I felt like he was treating me like a dog and told-justbushed [sic] me offand kind ofmotioned a kick at me and-I don't believe for any intent but other thanjustto belittle me. And that was kind ofan ongoing thing. And Ijust, I snapped and I drew my, I drew a knife and, and I stabbed him. I attempted to kill him. THE COURT: Pardon me? [Mr. DeVore]: In a-an attempt to kill him. That is not true. THE COURT: Anything else you'd like to say, sir- [Mr. DeVore]: No, sir. Report ofProceedings (RP) at 23-24. The State objected to the trial court accepting Mr. DeVore'spleabased onthat statement, arguing that Mr. De Vore did not state an adequate factual basis to supportthe intent element ofsecond degree murder. The State then argued that the courthad discretion in the interests of justice to not accept Mr. DeVore's plea. The trial court determined that Mr. DeVore's pleawas knowing, intelligent, and voluntary, and also determined Mr. De Vore stated an adequate factual basis for his pleato second degree murder. The court noted it had some concernwhetherthe entry ofMr. DeYore's plea served the interests of justice. Defense counsel andthe State began to argue this issue when the trial court declared a recess. There were no further proceedings that day.



### 5No. 33106-7-III State v. DeVore
The trial courtheld another hearing on December 29, 2014. After argument from the State and defense counsel, the trial court stated it had considered the case significantly since the previous hearing and determined that its previous ruling, which denied the State's motion to amend the information, was incorrect in light ofFord. The court ruled the December4, 2014 continuance was required in the administration of justice and did not prejudice Mr. DeVore's substantial rights. The court further ruled that allowing the State to amend the information would not prejudice Mr. DeVore's mental health, right to remain silent, or due process rights. Because there was no prejudice to Mr. DeVore, the court concluded the State should be allowed to amend the information. Defense counsel advised the court that 

### Mr. DeVore would not enter a plea at that time. The courtthen entered a not guilty plea for Mr. DeVore. Mr. DeVore filed a notice for discretionary review. This court determined the trial court's decision constitutedprobable error and granted discretionary review. ANALYSIS Mr. DeVore argues the trial court erred when it allowed the State to amend the original information charging him with second degree murder and file an amended information charging him with first degree murder. He contends he entered a valid guilty

6No. 33106-7-III State v. DeVore plea on December 22, 2014, and therefore the trial court erredwhen it withdrewthatplea and allowed the State to amend the information. 3 This court generally reviews the granting ofa motion to amend an information for
an abuse ofdiscretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995). However, the issue ofwhetherthe trial court deprived a defendant ofhis orherrule-based right to plead guilty to the original charges is subjectto de novo review. State v. Conwell, 141 Wn.2d 901, 906, 10 P.3d 1056 (2000) (quoting State v. Ledenko, 87 Wn. App. 39, 42, 940 P.2d 280 (1997)). CrR 2.1(d) addresses when the State may amend an information. It provides that "[t]he court may permit any information orbill ofparticulars to be amended at any time before verdict or finding ifsubstantial rights ofthe defendant are notprejudiced." Under the plain language ofCrR2.l(d), ifthe trial court had found Mr. De Vore guilty, the State could no longer amend the information. The trial court never formally found Mr..De Vore guilty, so this case is more complicatedthan a straightforward application ofCrR2.l(d).

3 Mr. DeVore's argument is inconsistent as to when he entered a valid guiltyplea. There are instances where he argues he entered a valid guiltyplea at the December 22, 2014 hearing. There are other instances where he argues he entered a valid guiltyplea on December 4, 2014. These inconsistencies are likely due to the fact thatMr. DeVore's appellate briefreuses substantial portions ofthe briefs he filed after the December4 hearing, when the trial court asked for briefing on whether Mr. De Vore had entered a validplea. We analyze the issues in light ofthe December 22 hearing. 7No. 33106-7-III State v. DeVore
The trial court, however, conducted a full plea colloquy, found Mr. De Yore's pleawas knowing, voluntary, and intelligent, and also found an adequate factual basis supported the plea. The question ofwhetherthe State was allowed to amend the information is related to Mr. DeVore's right to plead guilty. Whether the trial court violated Mr. De Yore's right to plead guilty depends on whether CrR4.2(d) was satisfied. That rule provides in relevant part: The court shall not accept aplea ofguilty, without first determining that it is made voluntarily, competently and with an understanding ofthe nature of the charge and the consequences ofthe plea. The court shall not enter a judgmentupon aplea ofguilty unless it is satisfied that there is a factual basis for the plea. CrR4.2(d). Therefore, we first address whether an adequate factual basis supported Mr. DeYore's plea. We then address whetherthe trial court violated Mr. De Yore's right to plead guilty. Ifthe trial court violated Mr. DeVore's right to plead guilty, then the trial court abused its discretion when it later allowed the State to amend the information. A. FACTUALBASIS FORPLEA The State argues Mr. DeVore'spleawas invalid because it was not supported by
an adequate factual basis. CrR4.2(d)'s factual basis requirement is satisfied ifthere is sufficient evidence from which ajury could conclude the defendant is guilty. State v.
8No. 33106-7-III State v. DeVore Rhode, 56 Wn. App. 69, 72, 782 P.2d 567 (1989). The trial court does not needto be convinced ofa defendant's guilt beyond a reasonable doubt. Id. A person is guilty ofsecond degree murder when, "[ w]ith intentto cause the death ofanother person butwithoutpremeditation, he or she causes the death ofsuchperson or ofa third person." RCW 9A.32.050(l)(a) (emphasis added). "Aperson acts with intent
or intentionally when he or she acts with the objective orpurpose to accomplish a result which constitutes a crime." RCW 9A.08.010(l)(a). Therefore, to satisfy the intent element, Mr. De Vore had to act with the objective orpurpose to cause Mr. Christian's death.4The State relies on State v. Powell, 29 Wn. App. 163, 627 P.2d 1337 (1981). In Powell, the trial court never asked the defendantto describe whathe did to the victim or with what intent he acted, but merely asked the defendant questions regarding his understanding ofthe statement onplea ofguilty and the authenticity ofhis signature. Id. at 164. The defendant's written statement onplea ofguilty only stated, "'I did participate in the 1 [degree] murder of[the victim]."' Id. at 165 (first alteration in original). The

4 Mr. De Vore argues that for there to be a factual basis for his guiltyplea, he only needed to intend to stab Mr. Christian, buthe did not specifically have to intend for Mr. Christian to die. The second degree murder statute refutes this argument, which requires the person to act "[ w]ith intent to cause the death of anotherperson." RCW 9A.32.050(l)(a) (emphasis added). 9No. 33106-7-III State v. DeVore
Powell court held there was insufficient evidence to supportthe factual basis for the plea because "no attempt was made to orally elicit a description ofeither defendant's acts or state ofmind," and the legal conclusion in the defendant's written statement failed "to set forth any ofthe elements from which ajury could have found defendant guilty offirst degree murder." Id. at 167 (emphasis added). The State also relies onIn re PersonalRestraint of Taylor, 31 Wn. App. 254, 640 P.2d 737 (1982). The only factual basis in the record to support Bruce Taylor's guilty pleawas his written statement, "'I was directly involved in the planning, carrying outthe plan, and aftermath ofthe murder ofMyrtle Boston, which occurred July 4, 1977."' Id. at 259. The Taylor court concluded this written statementwas analogous to the one in Powell and failed to set outthe elements offirst degree murder. Id. at 259-60. Here, unlike in Powell and Taylor, the trial court asked Mr. DeVore at the December 22 plea colloquy to describe the facts supporting his plea. Thetrial court found Mr. DeVore's description established an adequate factual basis for the plea and later confirmedthis ruling in its conclusions oflaw. The State argues there was an inadequate factual basis for Mr. DeVore'splea because Mr. DeVore denied that he intendedto kill Mr. Christianwhenhe said:"'And I just-atthat moment, I-something came overme. It was like getting hit by a lightning
10No. 33106-7-III State v. DeVore
bolt. And after it happened, I didn't even really recognize whathad happened until later."' Br. ofResp't at 10 (quoting RP at 23). However, this statement does not contradict the trial court's finding that Mr. DeVore acted with the objective orpurpose to accomplish Mr. Christian's death, as RCW 9A.08.0IO(l)(a) requires. Right after this statement, Mr. DeVore said: "And Ijust, I snapped and I drew my, I drew a knife and, and I stabbed him. I attempted to kill him." RP at 24 (emphasis added). Mr. DeVore's statement that he "attemptedto kill" Mr. Christian supports the intent element ofsecond degree murder. Unlike the defendants' written statements in Powell and Taylor, which only contained legal conclusions, Mr. DeYore's oral statement sets out the elements from which ajury could have found him guilty ofsecond degree murder. Althoughhis statement may not have establi~hed guiltbeyond a reasonable doubt, there is sufficient evidence for ajuryto conclude he was guilty.5 An adequate factual basis supported his plea.

5The State does not explicitly discuss Mr. DeYore's comment that occurred at the end ofhis statementto the court, where he vaguely denied an intent to kill. Buteven had the State discussed Mr. DeVore's vague denial, Mr. DeVore's statement immediately prior-wherehe clearly admitted his intent to kill-is sufficient for us to affirm the trial court's finding that Mr. DeYore'splea had a sufficient factual basis and was knowingly, 11No. 33106-7-III State v. DeVore


### B. RIGHT

### TO PLEAD GUILTY In Washington, CrR4.2(a) gives criminal defendants the right to plead guilty. State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). Butthe trial court is not required to immediately and automatically accept a proffered guilty plea. See State v. Ford, 125 Wn.2d 919, 924, 891 P.2d 712 (1995). Rather, a trial court's acceptance ofthe guilty plea is "explicitly contingent on the trial court's independent evaluation ofvoluntariness." Id. Mr. DeVore relies on State v. Rhode, 56 Wn. App. 69 and State v. Conwell, 141 Wn.2d 901. In Rhode, the State and Tanya Rhode negotiated aplea agreement. Rhode, 56 Wn. App. at 70. At the pleahearing, the trial court acknowledged Ms. Rhode's plea
was knowing, intelligent, and voluntary, acknowledged she was informed ofthe nature of the charge and the consequences ofthe plea, and acknowledged there was a factual basis for the plea. Id. at 71. The trial court then accepted M~. Rhode's plea. Id. At sentencing, the trial court believedthe State's recommendation was too low, so it reversed its order accepting the plea. Id. at 72. TheRhode court held the trial court "erredby withdrawing its acceptance ofthe pleawhich it earlier found to be factually based and knowingly, intelligently and voluntarily made." Id. at 73.

intelligently, and voluntarily made. 12No. 33106-7-111 State v. DeVore
In Conwell, the State and Jeremy Conwell negotiated aplea agreement and Mr. Conwell proffered a guilty plea at his arraignment. Conwell, 141 Wn.2d at 904. The trial court inquired as to Mr. Conwell's competence, his understanding ofthe charges and consequences ofa guilty plea, and the voluntariness ofhis plea. Id. After a short continuance, the trial court determined there was an adequate factual basis to supportthe plea. Id. at 904-05. However, the trial court then rejected both the plea agreement and the proffered plea because it was concerned about Mr. Conwell'sjustification for using a weapon. Id. at 905. The trial court then arraigned Mr. Conwell and entered a not guilty plea sua sponte. Id. Several weeks later, the State moved to amend the information and Mr. Conwell objected, arguing that he should have been allowed to plead guilty to the charges in the original information. Id. The trial court allowed the amendment. Id. at 905-06. The Conwell courtheld the trial court failed to comply with CrR4.2(f). Id. at 908. The court noted the trial court rejected Mr. Conwell'sprofferedplea in the interests of justice, and stated, "Whilethe courthas the discretion to reject a plea agreementit finds inconsistent with the interests of justice, the court does not have discretion to reject a valid guiltyplea offered notwithstanding that agreement." Id. at 909 (emphasis added). The Conwell court also stated, "'

### It is up to the defendant to withdraw the plea, not the
13No. 33106-7-III State v. DeVore
court."' Id. (quotingRhode, 56 Wn. App. at 73). Accordingly, CrR4.2(f) required the trial court to give Mr. Conwell the choice ofwithdrawing his guilty plea or pleading to the charges without a plea agreement. Conwell, 141 Wn.2d at 910. The courtnoted Mr. Conwell had the right to plead unconditionally to the original charges, and held the trial court erred when it entered a not guilty plea sua sponte without Mr. Conwell's assent. Id. at 909. The court vacated the trial court's order amending the original information and remanded for Mr. Conwell to enter apleato the original charges. Id. at 910. In contrast, the State relies on Ford. In Ford, the State charged Mr. Ford with three counts offirst degree murder and at the arraignment Mr. Ford, through counsel, proffered a guilty plea. Ford, 125 Wn.2d at 921. The State immediately moved to continue the arraignment, stating itpossessedpotentially exculpatory material it needed to disclose priorto any plea. Id. The court continued the arraignmentproceeding for a week and did not accept the proffered guilty plea. Id. During the following week, the State discovered inculpatory evidence and moved to amend the charge to aggravated first degree murder. Id. The trial court allowed the amendment. Id. The Fordcourtheld the continuance was not a violation ofMr. Ford's right to plead guilty. Id. at 925. The court reasoned CrR4.2(d) obligates the trial court to be independently satisfied ofthe voluntariness and factual basis for the plea, and the trial
14No. 33106-7-111 State v. DeVore

court continued Mr. Ford's arraignment based in part on a concern the proffered guilty plea was not knowing, intelligent, or voluntary, as well as a concern that Mr. Ford had a right to review the exculpatory material. Id. at 924-25. Fordalso held the trial courtproperly allowed the State to amend the information. Id. at 928-29. CrR2.l(d)'stemporal limitation that requires the State to amend the information before verdict or finding was not relevant, so the court turned to the question ofwhether allowing the State to amend the information wouldprejudice Mr. Ford's substantial rights. Id. at 928. The court found that allowing the State to amend the information would not prejudice Mr. Ford's substantial rights, reasoning that ER410 prohibitedthe State from using any evidence ofMr. Ford'sprofferedplea in any subsequent trial. Id. at 928. Importantly, the court also reasoned Mr. Ford was not prejudiced because it had "already determined that the Martin right to plead guilty was not violated." Id. Here, the trial court conducted an extensive plea colloquy during the December 22, 2014 hearing. In the colloquy, Mr. DeVore acknowledged all the constitutional rights he waived. He acknowledged he understood the elements ofsecond degree murder, his standardrange sentence, and the maximum penalty oflife imprisonment. He also acknowledged he reviewed his statement on plea ofguilty with defense counsel and
15No. 33106-7-III State v. DeVore
understood its contents, stated no one made threats orpromises to get him to plead guilty, and stated he understood the court was not bound by the standard range. In light ofthis colloquy, the court found that Mr. DeVore'spleawas knowing, intelligent, and voluntary. The trial court later confirmed this finding in its conclusions oflaw. This case is like Conwell and unlike Ford. In Ford, the trial court continuedthe arraignment because it was concerned Mr. Ford'sproffered guilty pleawas not knowing, intelligent, or voluntary, and was also concerned about Mr. Ford's right to review the exculpatory material. Because the trial court had not yet determined Mr. Ford's pleawas voluntary, CrR4.2(d) prohibitedthe trial court from accepting the plea. Because the trial court could not accept the plea, it did not err when it continued the arraignment and then allowed the State to amend the information. In this case, however, the trial court found that Mr. DeYore'spleawas knowing, intelligent, and voluntary, and also found that an adequate factual basis supported the plea. CrR4.2(d) was satisfied. Under Conwell, the trial court had no discretion to reject 

### Mr. DeYore's guilty plea. Moreover, because Mr. DeYore'spleawas not pursuant to a plea agreement with the State, the trial court also did not have discretion to reject the plea in the interests of justice. Like in Conwell, Mr. DeVore "hadthe right to plead unconditionally" and the trial court did not have authority to enter aplea ofnot guilty sua
16No. 33106-7-III State v. DeVore sponte. See Conwell, 141 Wn.2d at 909. Therefore, the trial court violated Mr. DeVore's right to plead guilty. TheFordcourt held that allowing the State to amendthe informationwould not prejudice Mr. Ford's substantial rights because it had "already determined thatthe Martin right to plead guilty was not violated." Ford, 125 Wn.2d at 928. Here, the trial court violated Mr. DeVore's right to plead guilty, thus prejudicing Mr. DeVore's substantial rights. We conclude the trial court abused its discretion when it allowed the State to file
an amended information charging Mr. DeVore with first degree murder. We, therefore,
reverse the trial court and remand to allow Mr. De Vore to enter a pleato the original charge ofsecond degree murder. Reversed and remanded. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

WE CONCUR: 

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# ?-;dh;u; I • doway, J. 

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# J- Pennell, J. 17