PART PUBLISHED OPINION
Harris pleaded guilty to second degree murder, second degree
assault, and third degree assault. Harris stipulated that
sufficient facts supported the plea to second degree murder;
however, he pleaded guilty to second degree assault and third
degree assault in accordance with In re Personal
Restraint of Barr. As part of his plea agreement, Harris
signed a written waiver of his appeal rights.
consolidated appeal and personal restraint petition (PRP),
Harris argues that his guilty plea was not voluntary and
intelligent, that the superior court's calculation of his
offender score violated the prohibition against double
jeopardy, and that newly discovered evidence undermines the
factual basis for his plea. In the published portion of this
opinion, we hold that Harris's plea was voluntary and
intelligent and that he waived his right to appeal his
sentence. In the unpublished portion of this opinion we hold
that Harris fails to meet the standard for newly discovered
evidence to merit withdrawal of his plea. Thus, we affirm
Harris's convictions and sentence, and we deny his PRP.
2015, the State charged Harris with second degree felony
murder of Nicole White, predicated on second degree assault.
The State's probable cause declaration detailed that
earlier on the day White died, she and Harris had left a bar
together, and that Harris's neighbor had seen a woman
matching White's description at Harris's home and had
also heard a female screaming. The declaration stated that
police found White's body wrapped in a canvas tarp down
the side of an embankment. White had suffered multiple broken
bones in her skull. The declaration also stated that
photographic and cell phone location evidence showed that on
the day of White's death, Harris had driven his vehicle
near the same embankment where police found White's body.
The declaration further stated that police found a sweatshirt
in Harris's home with White's blood on it.
November 4, the State filed an amended information charging
Harris with first degree premeditated murder, asserting that
Harris "did unlawfully and feloniously, with
premeditated intent to cause the death of another
person" cause White's death. Clerk's Papers (CP)
at 5. The superior court arraigned Harris on the new charge.
The State's supplemental probable cause declaration
stated that in addition to multiple broken skull bones,
White's sternum had sustained injuries consistent with
being stomped on.
27, 2016 the State filed a second amended information
charging Harris with second degree felony murder, second
degree assault, and third degree assault of
White. That same day, Harris signed a plea
agreement, agreeing to plead guilty to the amended charges.
Harris's statement on plea of guilty said, "[I]n the
early morning hours of June 7, 2015, at my residence in
Pierce County, Washington State, with intent to cause her
death, I severely beat Nicole White, a human being, and
thereby caused her death." Clerk' Papers (CP) at 27.
Instead of stating a factual basis for the assault charges,
Harris acknowledged that under Barr, he was pleading
guilty to the assaults, which were crimes he did not commit
and for which there is no factual basis, "in order to
take advantage of the plea agreement reached with the
State." CP at 14.
addendum to his guilty plea, Harris stated:
I understand that the prosecution would be unable to prove
the amended charges in Counts II and III at trial, but I see
pleading guilty to the amended charges as being beneficial to
me because it will allow me to avoid the risk of conviction
on the greater charges I would face at trial. Based upon a
review of the alternatives before me, I have decided to plead
guilty to crimes I did not commit in order to take advantage
of the State's pretrial offer.
Suppl. CP at 547. Harris also stipulated to the facts and
statements from the State's probable cause declaration.
Harris further stated in his addendum that his counsel had
discussed "all of the elements of the original
charge" with him and that he understood them all. Suppl.
CP at 547.
stipulated to his criminal history and further stipulated
that his offender score would be 7 points for the second
degree murder conviction. He stipulated that the second
degree murder, second degree assault, and third degree
assault each occurred on separate dates. In the plea
agreement, Harris also waived his right to an appeal for
"any and all other appellate rights [other than the
right to appeal any sentence outside of his standard
sentencing range] as part of this plea agreement in
accordance with State v. Lee." CP at 14. Harris
and his counsel both signed acknowledgements that his counsel
had consulted and reviewed the plea agreement with Harris.
28, at Harris's plea hearing, the superior court engaged
in a lengthy colloquy with Harris. Although the superior
court did not directly ask Harris about his appeal rights
waiver, the court inquired whether he had read his statement
on the guilty plea, reviewed it with his counsel, understood
everything, and had all of his questions answered. Harris
responded affirmatively to all of the court's questions
in this regard. Harris affirmed that he had no
"confusion" or "questions" regarding the
plea. 1 Report of Proceedings (RP) at 14. Harris's
defense counsel also informed the court that he "went
through the plea form with [Harris] in detail" and that
Harris understood "his obligations under [the] plea
agreement." 1 RP at 7-8. At the end of the colloquy, the
superior court stated:
As to Counts 2 and 3 [the assaults], those are in the form of
an In Re Barr plea and because of that I have read
the original declaration that supports the original charges,
the prosecutor's statement. I believe that does support
the charges-more serious charges frankly, and I'm
incorporating that declaration into this statement of
defendant on plea of guilty.
1 RP at 20-21. The superior court concluded that Harris's
plea was made freely, voluntarily, intelligently, and with an
understanding of the consequences.
was sentenced on October 31. Harris objected to an offender
score of 7 for the second degree murder conviction. In
response, the State asserted that Harris should be held to
his bargain and stipulations in the plea agreement.
Notwithstanding Harris's objection, the superior court
calculated Harris's standard range sentence for second
degree murder based upon an offender score of 7. The court
then sentenced Harris to a standard range sentence of 316
months in prison.
appealed his judgment and sentence. Harris also filed a CrR
7.8 motion for relief from judgment. The superior court
transferred Harris's CrR 7.8 motion to this court to
consider as a PRP. We consolidated Harris's direct appeal
and his PRP.
Validity of Plea
on Barr and CrR 4.2, Harris contends that his guilty
plea is invalid because he was unaware that the nature of the
original charge was premeditated murder and not second degree
murder. The State's only response to this issue is that
Harris invited this error, or alternatively, waived this
argument in his plea agreement. We hold that Harris did not waive
his right to challenge the validity of his plea and that
Harris's plea was valid because it was intelligent and
In re Personal ...