STATE v. NEWTON No. 42356-1-II.
STATE OF WASHINGTON, Respondent, v. DATRION ISREAL NEWTON, Appellant.
Court of Appeals of Washington, Division Two.
Filed: March 26, 2013.
Kathryn A. Russell Selk, Russell Selk Law Office, Po Box 31017, Seattle, WA, 98103-1017, Counsel for Appellant(s).
Brian Neal Wasankari, Pierce County Prosecuting Atty, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171, Counsel for Respondent(s).
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.
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 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 of justice:
Clerk's Papers (CP) at 12.
Newton entered an Alford/Newton
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 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.
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 2.5(a). This rule does not, however, preclude review of an issue involving a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott,
Newton pleaded guilty to second degree felony murder under RCW 9A.32.050(1)(b). This statutory provision states that a person is guilty of second degree murder when
RCW 9A.32.050(1)(b). 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 murder. Brief of Appellant, at 6. See State v. Lively,
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 of Andress,
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,
LAWS OF 2003, ch. 3, § 1.
Newton maintains that despite this statement and the accompanying amendment, the ambiguity that led to the Andress court's construction of the former second degree felony murder statute remains because the amended statute retains the "in furtherance of" language. RCW 9A.32.050(1)(b). 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,
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,
The legislature has the power, within constitutional constraints, to define criminal conduct and set punishments. State v. Wadsworth,
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.
JOHANSON and BJORGEN, JJ., concur.
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