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State v. Robinson

Court of Appeals of Washington, Division 1

April 22, 2019

STATE OF WASHINGTON, Respondent,
v.
DERWIN ROBINSON, Appellant.

          MANN, J.

         In a prosecution where predicate convictions are an essential element of the crime, the State is required to prove the previous convictions are valid and constitutional beyond a reasonable doubt. Derwin Robinson appeals his 2016 felony conviction of violating a no-contact order. Robinson's felony conviction was predicated on Robinson's plea to two 2015 misdemeanor violations of a no-contact order based on Robinson's single act of assaulting his wife. It is undisputed that one of Robinson's 2015 convictions was based on a criminal act. It is also undisputed that the second conviction was based entirely on fiction-purportedly relying on State v. Zhao, 157 Wn.2d 188, 190, 137 P.3d 835 (2006).

         Robinson argues that because the two 2015 convictions were based on a single criminal act, the second, fictitious conviction violates double jeopardy and the State failed to demonstrate two valid and constitutional predicate prior convictions. We agree with Robinson. We hold that Zhao does not provide a basis to avoid double jeopardy and convict a person for two crimes based on one criminal act. Accordingly, we reverse.

         I.

         On October 22, 2015, Ericka Robinson called 911 to report that Robinson, her then spouse, assaulted her. Officers responded and determined that an existing no-contact order prohibited Robinson from assaulting, harassing, or threatening bodily harm to Ericka.[1] The no-contact order did allow in-person contact between the two, but did not allow the two to reside together. According to the determination for certification of probable cause:

Ericka stated that she and [Robinson] were at a neighboring apartment when they began to argue about a bank card and something spilling in her vehicle. Ericka ran from [Robinson] as he chased her through the apartment, trying to avoid being assaulted. [Robinson] caught up to Ericka as she neared the door to the apartment. [Robinson] pushed her and she fell out the door onto the concrete patio. When Ericka fell, she landed on her left hip, causing an abrasion and friction burns to her hip.

         The following day, Ericka's father called 911 to report that he believed Robinson was back in Ericka's home. There is no indication that Ericka was home, or that a further violation of the no-contact order occurred. Officers went to the location, found Robinson inside, and arrested him.

         While the 2015 information is not before us, it appears that Robinson was charged with one count of felony violation of a court order predicated on the assault. RCW 26.50.110(4). Robinson has a substantial prior criminal history and faced a long sentence for a felony conviction. Prior to trial, Robinson negotiated a settlement pleading guilty to two misdemeanor violations of a court order, in lieu of being found guilty or pleading guilty to the felony violation.

         For one of the misdemeanor convictions, Robinson admitted that he willfully violated the no-contact order. The plea for the second misdemeanor was purportedly entered under Zhao and In re Barr, 102Wn.2d 265, 684 P.2d 714 (1984). Robinson admitted that there was no factual basis for the plea. Robinson's understanding was memorialized in his plea statement:

I am pleading guilty to two counts misdemeanor Domestic Violence Violation of a Court Order. Further, I have been advised by my attorney that this plea is legal and permissible pursuant to [Zhao] (factual basis for pleading guilty to amended charges was not required where there existed a factual basis supporting the original charges) and [Barr] ("A plea does not become invalid because an accused chooses to plead to a related lesser charge that was not committed in order to avoid certain conviction for a greater offense. The trial court must find a factual basis to support the original charge, and determine that defendant understands the relationship of his conduct to that charge. Defendant must be aware that the evidence available to the State on the original offense is sufficient to convince a jury of his guilt.") Pursuant [Zhao] and [Barr], on or about 10/22/15, in King County, WA, I did know of and willfully violate the terms of a court order issued on 9/15/15 by the King County Superior Court pursuant to RCW chapter 10.99 for the protection of Ericka Sanders-Robinson, my wife and mother of my child, in violation of the conditions listed in that order.

         After a subsequent incident between Robinson and Ericka in October 2016, the State charged Robinson with one count of felony violation of a no-contact order under two theories: (1) that Robinson's conduct during the no-contact violation was an assault under RCW 26.50.110(4)[2] or (2) that Robinson's two prior misdemeanor convictions for violating a no-contact order elevated the crime to a felony under RCW 26.50.110(5).[3]After the State agreed not to proceed on the assault theory and pursue only the two prior misdemeanors theory, the parties stipulated to a bench trial.

         By pretrial motion, Robinson asked the trial court to preclude the two prior 2015 misdemeanor convictions as predicate convictions supporting the felony charge under RCW 26.50.110(5). Robinson argued that his two misdemeanor convictions were insufficient predicate convictions to elevate the current charge to a felony no-contact violation under the statute because there was only one factual basis to support the two charges.

         The trial court denied Robinson's motion to exclude the predicate conviction. The court held that RCW 26.50.110 did not preclude predicate convictions based on a Zhao plea. After reviewing Robinson's plea statement from the 2015 convictions, the trial court found:

Although oddly written, the parties agree that the above statement constituted a "straight plea," of guilty to one count of Domestic Violence Misdemeanor Violation of Court Order, and a Zhao plea of guilty as to the second count. The parties further agree that there is no factual basis to support a second conviction for Domestic Violence Misdemeanor Violation of a Court Order.

         Following a stipulated bench trial, Robinson was found guilty of felony violation ...


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