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In re Personal Restraint Petition of France

Court of Appeals of Washington, Division 1

July 24, 2017

In the Matter of the Personal Restraint Petition of WILLIAM NEAL FRANCE, Petitioner.

          SCHINDLER, J.

         A jury convicted William Neal France as charged of three counts of felony harassment of his former attorney and two counts of felony harassment of The Defender Association (TDA) deputy director in violation of RCW 9A.46.020. The Washington Supreme Court affirmed the felony harassment convictions. State v. France. 180 Wn.2d 809, 820, 329 P.3d 864 (2014). On December 8, 2015, France filed a personal restraint petition. France claims that because the course of conduct is repeatedly threatening to cause bodily harm to the same victim, three of the five convictions violate double jeopardy and the prohibition against multiple punishments for the same offense. France argues the only case that has addressed the unit of prosecution for felony harassment, State v. Vidales Morales, 174 Wn.App. 370, 298 P.3d 791 (2013), supports his argument. We disagree. In Vidales Morales, we concluded that given the factual scenario in that case, the unit of prosecution was the threat to cause bodily harm to a single identified victim at a particular time and place regardless of how many times the threat was communicated. Unlike in Vidales Morales, France made different types of threats to cause bodily harm to each of the two victims at different times and places. We conclude under the facts in this case, the unit of prosecution is each threat and each threat is a violation of the felony harassment statute. We deny the personal restraint petition.

         2009 Plea Agreement

         The State charged France with felony violation of a protection order in 2009. TDA attorney Anita Paulsen represented France and negotiated a plea agreement with the State. The State agreed to resolve a pending charge of misdemeanor assault in the fourth degree and recommend a drug offender sentencing alternative (DOSA). The court accepted the plea, finding France knowingly, intelligently, and voluntarily entered into the plea. TDA social worker Nina Beach worked with France to obtain benefits after release from custody.

         At the sentencing hearing on October 16, 2009, the court followed the recommendation and imposed a DOSA sentence for felony violation of a protection order and a concurrent sentence for misdemeanor assault.

         2011 Plea Agreement

         Beginning in late 2010, France started leaving angry and "inappropriate" voice mails for Paulsen and Beach. After receiving "at least a dozen, probably more" voice mails, Paulsen met with TDA Deputy Director Lisa Daugaard.

         Daugaard called France in an effort to figure out why he was so "upset" and "what was motivating such anger." When France returned the call, he was "quite upset" Daugaard had called him.

          Daugaard sent France a "cease and desist" letter. Daugaard told France not to contact Paulsen or Beach. But Daugaard offered to talk to France about whether "he was dissatisfied or had concerns about his representation ... and, if there was follow-up that needed to happen, [she] would make sure that that happened."

         France ignored the cease and desist letter and continued to contact Paulsen and Beach. France also started leaving threatening voice mails for Daugaard.

         Paulsen said that after Daugaard sent the cease and desist letter, "it was like putting gasoline on a fire." The voice mails "had a different character to them"- "[t]hreats of sexual assault, threats of cutting us, shooting us, ... and sexual assault in the most vile language I think I've ever heard."

         Daugaard and Paulsen contacted the police. Paulsen said she "had never, ever even contemplated reporting a client" to the police. Daugaard testified it was the first time in her career as a public defense attorney that she contacted the police about a client.

I've never participated in reporting any of our clients to law enforcement out of all those thousands and thousands and thousands of interactions and many whatever dozens or hundreds of complaints and unhappy people and sometimes irrational-sounding people.
None of those interactions have ever made me think it was appropriate to take that kind of step.

         On September 23, 2011, the State charged France with 16 counts of felony harassment in violation of RCW 9A.46.020: 6 counts of felony harassment of Paulsen, 5 counts of felony harassment of Daugaard, and 5 counts of felony harassment of Beach. The State alleged manifest deliberate cruelty and an offense against an officer of the court as aggravating factors.

         France pleaded guilty to nine counts of felony harassment and the aggravating factor of committing an offense against an officer of the court "in support of an exceptional sentence." In the "Statement of Defendant on Plea of Guilty, " France admits, "I placed the calls that are contained in pre-trial exhibit 1 ."[1] France admits he "knowingly threatened to cause bodily injury" to each of the victims "immediately or in the future, " he "threatened to maliciously do an act intended to substantially harm" each victim, and "my words placed [each victim] in reasonable fear that the threat would be carried out." The State agreed to dismiss the other seven counts of felony harassment and the aggravating factor of deliberate cruelty.

         The court found there was a factual basis for the plea and France knowingly, intelligently, and voluntarily entered the plea. The court found France guilty as charged in the amended information.

         Paulsen and Daugaard attended the sentencing hearing on November 10, 2011 to address imposition of an exceptional sentence. Paulsen told the court France was a "very dangerous" and "terrifying individual" who promised to "hunt us down like animals on the street in front of the courthouse or the jail as we went around about our work." Paulsen "just wanted it to be over" and urged the court to impose an exceptional sentence.

[I]t [is] important for the Court to know how unusual this is, how dangerous I felt the situation was in that this was something for no apparent reason that I could understand, something that escalated in frequency over time, described time, place, manner of assault, history of violence towards others that had been acted upon, a history of gratuitous violence.

         Daugaard also asked the court to impose an exceptional sentence. Daugaard told the court France "talked about how he would find where I live and hurt not only me but whoever lived with me."

         The court imposed an exceptional sentence of 180 months. The court ordered France to have no contact with the victims for the maximum term of 15 years.[2]

         2011 Felony Harassment Charges

         Despite the court order to have no contact with Paulsen and Daugaard, France started leaving voice mails for Paulsen and Daugaard almost immediately after the sentencing hearing on November 10, 2011.

         On November 10, France left a voice mail for Daugaard threatening to harm her.

Hey bitch. You fucked up by coming into the courtroom today. You think for one fucking minute nothing's going to happen to you? You worthless mother-fucking slut.... Give a message to Rita, Anita Paulsen, same thing. 8 years. You'd better find a new job, bitch. You better find a new fucking job.

         Paulsen testified that France called and left a voice mail "within hours of the sentencing" but she did not listen to the voice mail until November 11. In the voice mail, France tells Paulsen that "a few of my friends ... [will] be paying you a visit."

Hello honey. Glad to hear your voice. What you did in the courtroom was outstanding. That was a marvelous fucking act. I never heard [inaudible] in my whole life. I called up a friend, I called up a few of my friends. I told them about [you]. They'll be paying you a visit. Have a nice fucking life, you worthless fucking bitch.

         Paulsen said the voice mail placed her in absolute fear.

[I]t tells me he will not be dissuaded, he cannot be stopped, as soon as he has access to a phone, he will call and, as soon as he is out, he will try to implement his threat, or he will find quote some of his friends to do that for him.

         Paulsen described most of the other voice mails she had received as "sexually explicit with threats of anal rape and sodomy." Paulsen said the voice mail on November 11 was "different"-it was a threat that his friends would harm her.

On November 17, France left another threatening voice mail for Paulsen.
Hello Anita. That was spectacular you being in the courtroom. That was great. I like that, you was really concerned about my welfare. Just want to let you know there's a couple of, a couple of my buddies are coming to see ya. They'll take you out for lunch. You know. Show you, show you appreciation. Just to let you know. It's gonna be okay. I told them to take care of ya. You know to treat you really good.

         Paulsen testified the statement "[t]hey'll take you out for lunch" meant his "buddies" would "take me out, period."

Q. Now, I don't know whether you would - this is a fair characterization or not, but do you detect some note of sarcasm in the voice or tone in terms of people showing their appreciation or taking you out to lunch, those sorts of things? The words seem to suggest one thing; how did you interpret that?
A. Mr. France has historically been fairly cagey with a lot of his cases. I interpret it as taking me out to lunch, meaning to take me out, period.
Q. Did you perceive it as a threat?
A. I did perceive it as a threat.
Q. Is there any doubt in your mind that it was intended as a ...

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