State Of Washington, Respondent V. Roy P. Jackson, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ROY PURCELL JACKSON, JR.,
Appellant.
NO. 69423-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: August 11, 2014
Leach, J. — Roy Jackson Jr. appeals his conviction for assault in the first
degree and assault in the second degree. 	He claims that his guilty plea was
involuntary 	because 	he 	received 	misinformation 	about 	the 	sentenffhg
consequences of this plea. 	Jackson also claims that the trial court abusecFrts
discretion when it denied his request for a competency evaluation and that the
court had no authority to impose a lifetime no-contact order. 	Because JacksclQ
shows no error, we affirm.
FACTS
On April 20, 	2011, while 	riding a 	Metro 	bus, 	Jackson shot passenger
Antoine Greenhaigh twice in the stomach. 	Jackson then pointed the gun at the
bus driver, Margaret Caster, and told her to open the door to let him out. 	After
Caster complied, Jackson ran away.

NO. 69423-5-1 / 2
The State charged Jackson with first degree assault against Greenhaigh
and 	second 	degree 	assault 	against 	Caster. 	The 	State 	sought 	firearm
enhancements on both counts.
After Jackson's arraignment, Dr. Kenneth Muscatel, an expert from the
King County Office of the Public Defender, evaluated Jackson "to see if. . .
[Jackson] had a defense of diminished capacity." 	Muscatel described Jackson
as "a paranoid, suspicious but also rather cagey individual," who claimed no
memory 	of the 	shooting 	initially 	based 	upon 	the 	"misplaced 	belief that 	not
remembering what occurred was sufficient for a 	mental defense." 	Muscatel
determined that Jackson "has chronic paranoid features and was high on Sherm
and marijuana at the time of the alleged incident." 	He opined that Jackson had
the "capacity to form the general intent to pull, point and shoot the gun at the
victim" and that "there is insufficient information to conclude he was so impaired
he couldn't form the intent to assault." 	Muscatel concluded that Jackson "does
not meet the level of Diminished Capacity." 	In his report, Muscatel stated that he
had "little doubt" that Jackson "engaged in this conduct due to factors of mental
health 	and 	substance abuse. 	Such factors 	meet the criteria for a 	court to
consider as mitigating factors in rendering a sentence if Mr. Jackson were found
guilty of this offense."
On 	November 	23, 	2011, 	defense 	counsel 	Kris 	Jensen 	asked 	for 	a
competency 	evaluation 	at 	Western 	State 	Hospital 	because 	Jackson 	was
"inconsistent 	in 	his 	communicating" 	with 	Jensen. 	Jensen 	stated 	that 	his

NO. 69423-5-1 / 3
conversations with Jackson "have always been ... hit or miss. 	Sometimes he is
with me, sometimes he is not [with] me; sometimes we have nutty discussions,
and sometimes they are kind of on 	point." 	He told the court that his 	initial
requests to visit Jackson in jail were unsuccessful. 	Because Jackson was "being
very uncooperative," jail personnel would not bring him out. 	Jensen stated that
on November 14, 2011, he visited Jackson, who was "completely off his rocker."
Jensen explained that although Jackson 	recognized Jensen during that visit,
Jackson was yelling, punching the glass, "pointing to a Band-Aid on the inside of
his arm, saying that, They are doing things to him. 	Look at, they took my blood.
They stabbed me with things. 	You can't believe what they are doing to me—kind
of yelling around the room." 	Jensen acknowledged that Jackson understood the
charges against him and was sometimes helpful in analyzing the case.
The State opposed the defense request for a competency evaluation. 	The
prosecutor noted, "The question before the Court is whether Mr. Jackson, sitting
before the Court today, is competent to be here." 	The State played a recorded
jail phone call from November 7, 2011, in which Jackson stated, "I am going to
tell you more when you come here to visit me because I don't know, I might try to
pump—act like I am—thinking I ought to win, and then just wait for a visit, you
know what I'm saying?" 	The prosecutor told 	the court, "That would 	be the
relevant part of the conversation where he says 'I am going to act like'—and he
uses kind of lingo for crazy .... 'I am going to act like I am crazy and wait for a
better offer.'" 	The State also played a recorded jail phone call from November

NO. 69423-5-1 / 4
14, 2011, the day that defense counsel characterized Jackson as "off his rocker."
In 	this 	call, 	which 	Jackson 	had 	someone 	place 	on 	his 	behalf, 	the 	caller
communicated Jackson's message that "he is hoping to go to Western." 	The
State noted that Jackson appeared lucid in both of these phone calls.
The trial court denied Jackson's motion for a competency evaluation. 	The
court reasoned,
I 	certainly 	think 	that 	there 	are 	some 	issues 	here 	that 	are
appropriately 	before 	the 	Court, 	in 	terms 	of 	what 	has 	been
diagnosed 	as 	a 	polysubstance 	dependence—some 	kind 	of
paranoid 	features, 	and 	so 	forth—but 	it sounds 	to 	me 	like the
defendant is able to understand the nature of the charges against
him, and it sounds to me like the defendant is reasonably able to
assist in his—in his defense—by talking with counsel.
The fact that he may be paranoid, at times, does not suggest
to me that he is unable to communicate with counsel; the fact that
he had an episode on the 22nd—no, that was November 14, two
weeks ago, does not suggest to me that he would not be able to
confer with counsel.
It may in fact involve special meeting times and so forth and
so on, and may be a truncated schedule, but I don't see anything
that 	suggests, 	on 	this 	record, 	that 	he 	is 	unable 	to 	assist the
defense.
And 	again, 	really—the 	forensic 	psychological 	evaluation
from Dr. Muscatel suggests that there could be some convenient
lapses in judgment on the part of the defendant, and that would not
support the request to have him evaluated.
On May 15, 2012, Jackson pleaded guilty as charged. 	Paragraph 6(i) of
Jackson's statement on the guilty plea stated,
IN 	CONSIDERING 	THE 	CONSEQUENCES 	OF 	MY 	GUILTY
PLEA(S), I UNDERSTAND THAT:
The crime of Assault 1 has a mandatory minimum sentence of at
least 5 years of total confinement. 	The law does not allow any
reduction of this sentence. ... [If not applicable, this 	paragraph
should be stricken and initialed by the defendant and judge.]

NO. 69423-5-1 / 5
Jackson crossed out and initialed this paragraph, but the judge did not. 	In the
margin of the document, a handwritten bracket appears around this paragraph
along with the word "Applies."
At the 	plea 	colloquy 	hearing, 	Jackson 	told 	the 	court that 	he 	had 	an
opportunity to review the plea form with his attorney. 	The court asked Jackson if
he understood "paragraph i—and this is on page 5—applies? 	So that assault in
the first degree does have a mandatory minimum sentence of five years. 	Do you
understand 	that?" 	Jackson 	replied, 	"Yes." 	The court found 	the 	plea to 	be
knowing, intelligent, and voluntary.
Before sentencing, Jackson moved to withdraw his guilty plea based upon
ineffective assistance of counsel. 	He told the court,
Well, 	I feel 	like 	I was 	really 	manipulated 	into 	taking 	this 	plea
agreement or whatever, and basically a while back, Kris Jensen, he
stated that if I showed the prosecutor this thing that I did with this
doctor named Muscatel .... that I could get 15 years, you know
what I'm saying? 	And basically that didn't happen, it was said 15
years to 21, and I feel like that is against my rights, and I would like
to be able to stand trial, and I asked Kris Jensen to file motions for
me, and he said that he would not file these motions for me—to get
into Western State, and things of that nature, because I really have
mental problems, and he wouldn't do any of those motions.
The court appointed additional counsel to advise Jackson if a legal basis existed
on which to withdraw his guilty plea.
On 	September 	19, 	2012, 	Jackson's 	new 	attorney 	filed 	a 	motion 	to
withdraw his guilty plea. 	Jackson claimed that he 	"was 	confused about the
proceedings and about the evidence against him" and that he "had not enough
time to talk to his attorney about the case but was pressured to take the deal by

NO. 69423-5-1 / 6
his attorney and his family." 	He alleged that Jensen failed to "accommodate Mr.
Jackson's mental illnesses and ensure his comprehension of complex legal and
factual 	matters." 	Jackson 	also 	asserted 	that 	Jensen 	"did 	not 	conduct the
necessary investigation in order to provide Mr. Jackson with sufficient information
to make a knowing and intelligent waiver."
At a hearing on this motion, Jackson alleged that he did not have enough
information to make a valid waiver. 	His attorney argued,
[H]e has been provided with some discovery, but not all of it; he
had a couple of witnesses interviewed, but not all of them; and the
defense 	position 	is that because 	not all of the 	information was
provided to Mr. Jackson, 	and 	not all of the important witnesses
were interviewed in this case, Mr. Jackson was not able to make a
valid waiver of his rights at the time that he did the guilty plea.
The court determined that Jackson failed to show ineffective assistance of
counsel sufficient to withdraw his guilty plea. 	The court reasoned, "There is
nothing in the record to indicate that he was coerced or forced into pleading
guilty—but perhaps most importantly, there is absolutely nothing in the record to
show prejudice in this case." 	The court concluded, "Mr. Jackson has admitted to
committing these heinous crimes, he has waived his trial rights, and stated that
he voluntarily was making his plea of guilty, so the motion to withdraw the guilty
plea is denied."
The court imposed standard range sentences of 162 months on the first
degree assault count and 43 months on the second degree assault count, to run
concurrently, 	and 	firearm 	enhancements 	of 	60 	months 	and 	36 	months,
respectively, 	to 	run 	consecutively. 	The 	court 	also 	imposed 	36 	months 	of

NO. 69423-5-1 / 7
community custody and an order prohibiting contact with Greenhaigh and Caster
for life.
Jackson appeals.
ANALYSIS
Jackson raises three issues. 	First, he claims that his guilty plea is invalid
because "he was misinformed that a mandatory minimum sentence would 	be
imposed for the first degree assault conviction 	under count I." 	Second, 	he
asserts, "The court violated due process and statutory mandate in using the
wrong 	standard 	of proof to deny a 	competency evaluation." 	Third, Jackson
claims, "The court exceeded its authority in ordering no contact with the victim
under count II for a period of time that exceeds the statutory minimum for the
offense."
Jackson first claims that he is entitled to withdraw his guilty plea because
he "was misinformed about a direct consequence of his plea because he was
informed he would receive a mandatory minimum sentence but did not receive a
mandatory minimum sentence."1 	A guilty plea is valid if it is intelligently and
voluntarily made and if the defendant knows that he will waive certain rights.2 	A
1 Jackson may raise this issue for the first time on appeal because "a
defendant's misunderstanding of the sentencing consequences when pleading
guilty constitutes 	a 	'manifest error affecting 	a 	constitutional 	right.'" 	State 	v.
Mendoza, 157 Wn.2d 582, 589, 141 	P.3d 49 (2006) (internal quotation marks
omitted) (citing State v. Walsh, 143 Wn.2d 1, 7-8, 17 P.3d 591 (2001)).
2 State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996).

NO. 69423-5-1 / 8
plea 	is 	not 	knowingly 	made 	if it 	is 	based 	upon 	misinformation 	about 	the
sentencing consequences.3
The court must allow a defendant to withdraw a guilty plea if it appears
necessary to correct a manifest injustice.4 	A manifest injustice exists if (1) the
defendant did not ratify the plea, (2) the plea was not voluntary, (3) counsel was
ineffective, or (4) the plea agreement was not kept.5 	This injustice must not be
obscure; it must be obvious, directly observable, and overt.6 	"The defendant's
burden 	when 	seeking 	to 	withdraw 	a 	plea 	is 	demanding 	because 	ample
safeguards exist to protect the defendant's rights before the trial court accepts
the plea."7
Jackson 	contends 	"he 	was 	informed 	he 	would 	receive 	a 	mandatory
minimum sentence but did not receive a mandatory minimum sentence." 	The
record does not support this claim. 	The provision in Jackson's statement on plea
of guilty pertinent to his claim provides, "The Crime of Assault 1 has a mandatory
minimum sentence of at least 5 years of total confinement. 	The law does not
allow any reduction of this sentence." 	Under the facts of this case, this correctly
stated the applicable law.
RCW 9.94A.540(1) provides,
3 In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004)
(citing State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988)).
4 CrR 4.2(f).
5 State v. DeClue, 157 Wn. App. 787, 792, 239 P.3d 377 (2010) (citing
State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001)).
6 DeClue, 157 Wn. App. at 792 (quoting State v. Taylor, 83 Wn.2d 594,
596,521 P.2d 699 (1974)).
7 DeClue, 157 Wn. App. at 792 (citing Taylor, 83 Wn.2d at 596-97).
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NO. 69423-5-1 / 9
[T]he following minimum terms of total confinement are mandatory
and shall not be varied or modified under RCW 9.94A.535:
(b) 	An offender convicted of the crime of assault in the
first degree or assault of a 	child in the first degree where the
offender used force or means likely to result in death or intended to
kill the victim shall be sentenced to a term of total confinement not
less than five years.
Although the trial court must make factual findings that a defendant meets
the requirements of the statute before imposing this minimum,8 	Jackson does
not challenge the State's assertion that the record would support the necessary
finding easily. 	But nothing in the record supports Jackson's claim that he was
informed that the court would in fact make the necessary findings and impose
this minimum sentence. 	Jackson identifies no place in the record where he was
told, either orally or in writing, that the court would impose a minimum sentence
of five years. 	Instead, the record explains why the court imposed a different
sentence and 	affirmatively demonstrates that Jackson was properly informed
about the direct consequences of his plea.
With Jackson's criminal history, the standard range for his conviction for
assault in the first degree was 162 to 216 months. 	The firearm enhancement
added an additional consecutive 60 months. 	The firearm enhancement for the
assault in the second degree conviction added another consecutive 36 months.
Thus, Jackson's plea exposed him to an actual minimum standard range of 258
months. 	Jackson's plea agreement informed him of this and also allowed his
State v. McChristian, 158 Wn. App. 392, 402-03, 241 P.3d 468 (2010).

NO. 69423-5-1/10
counsel to 	request a 	downward 	deviation 	to 	180 	months "per failed mental
defense."
The sentencing court noted, "This was a vicious, pointless crime against
an innocent person, putting the lives of numerous innocent people at risk, a crime
against a bus driver trying to do her job who was terrified half to death that she
was about to die—no 	reason for the crime." 	The court declined 	Jackson's
request to impose a sentence below the standard range and imposed the State's
recommended sentence. 	Because Jackson fails to show any representation that
the court would impose a five-year minimum sentence on the first degree assault
count, he fails to show a manifest injustice. 	We deny his request to withdraw his
guilty plea.
Jackson 	also 	claims, 	"The 	court 	violated 	due 	process 	and 	statutory
mandate in denying the motion for a competency evaluation because it used the
wrong standard 	of proof." 	He alleges that the 	court erroneously applied a
"preponderance of the evidence" instead of a "reason to doubt" standard when
deciding 	his 	request. 	After the 	trial 	court 	denied 	Jackson's 	motion for a
competency evaluation, Jackson did not raise this issue again. 	He did not raise
this issue in his motion to withdraw his guilty plea.
-10-

NO. 69423-5-1/11
A decision to order a competency evaluation rests generally within the trial
court's discretion.9 	A court abuses its discretion if it bases that decision upon
untenable or manifestly unreasonable grounds.10
Because Jackson did not preserve this issue in the trial court, he must
show a manifest error affecting a constitutional right.11 	We must determine if the
alleged error suggests a constitutional issue and if the error is manifest—if the
asserted error had practical and identifiable consequences in Jackson's case.12
We address the merits of the constitutional issue only if the claimed error is
manifest.13 	If we find a manifest constitutional error, we then apply a harmless
error analysis.14
The due 	process 	clause of the Fourteenth Amendment to the 	United
States Constitution prohibits the conviction of a person who is not competent to
stand trial.15 	Under Washington law, an incompetent person may not be tried,
convicted, or sentenced for committing an offense so 	long as the 	incapacity
continues.16 	To be legally competent, a criminal defendant must be able to
9 In re 	Pers. 	Restraint of Fleming, 	142 Wn.2d 853, 863, 	16 	P.3d 610
(2001) (citing State v. Thomas, 75 Wn.2d 516, 518, 452 P.2d 256 (1969)).
10 State v. Jamison, 105 Wn. App. 572, 590, 20 P.3d 1010 (2001).
11 RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251
(1995).
12 State v. Harris, 154 Wn. App. 87, 94, 224 P.3d 830 (2010) (citing State
v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
13 Harris, 154 Wn. App. at 94 (citing Lynn, 67 Wn. App. at 345).
14 Harris, 154 Wn. App. at 94 (citing Lynn, 67 Wn. App. at 345).
15 Fleming, 142 Wn.2d at 861 (citing Drope v. Missouri, 420 U.S. 162, 171,
95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86
S. Ct. 836, 15 L. Ed. 2d 815 (1966)).
16 Fleming, 142 Wn.2d at 862 (quoting RCW 10.77.050).
-11-

NO. 69423-5-1/12
understand 	the 	nature of the charges against him and 	must be capable of
assisting in his defense.17 	The competency standard for pleading guilty is the
same as the competency standard for standing trial.18
When a reason exists to doubt a defendant's competency,
the court on 	its own 	motion or on the motion of any party shall
either appoint or request the secretary to designate at least two
qualified experts or professional persons, one of whom shall be
approved by the prosecuting attorney, to examine and report upon
the mental condition of the defendant.1191
To determine whether or not to order a competency evaluation, a trial court may
consider the defendant's appearance, demeanor, conduct, personal and family
history, 	past 	behavior, 	mental 	and 	psychiatric reports, 	and 	statements from
defense counsel.20
If the court orders a competency hearing, a defendant has the burden of
proving by a preponderance of the evidence that he is incompetent to stand
trial.21 	"Preponderance of the evidence means that considering all the evidence,
the proposition asserted must be more probably true than not true."22
17 Fleming, 142 Wn.2d at 862 (citing State v. Hahn, 106 Wn.2d 885, 894,
726 P.2d 25 (1986); State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985)).
18 Fleming. 	142 Wn.2d 	at 862 (citing Godinez v. Moran, 509 U.S. 389,
399, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993)).
19 Former RCW 10.77.060(1 )(a) (2004).
20 Fleming, 142 Wn.2d at 863 (quoting State v. Dodd. 70 Wn.2d 513, 514,
424 P.2d 302 (1967)).
21 Medina v. California, 505 U.S. 437, 450-51, 112 S. Ct. 2572, 120 L Ed.
2d 353 (1992); State v. P.E.T., 174 Wn. App. 590, 597, 300 P.3d 456 (2013),
petition for review filed, No. 89157-5 (Wash. Aug. 2, 2013).
22 State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 (2009) (citing State
v. Ginn, 128 Wn. App. 872, 878, 117P.3d 1155(2005)).
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NO. 69423-5-1/13
"[A] court is not obliged to determine a defendant's competency when
there is no factual basis for doubting it in the first place."23 The mere existence of
a mental disorder does not establish incompetency.24 	And the ability to assist
defense counsel does not require the defendant to be able to choose or suggest
trial 	strategy.25 	In 	State v. Hicks,26 the 	court determined 	that the fact the
defendant was angry with his attorney and not fully cooperative did not mean that
he was incompetent to stand trial.
When asked about the proper standard and burden of proof to order a
competency hearing, the prosecutor cited City of Seattle v. Gordon27 in stating,
"Before a 	determination 	of competency is required, 	the Court 	must 	make a
threshold determination that there is reason to doubt his competency." 	Jensen
stated that he did not know the proper standard. 	The court later stated, "I believe
that the standard is a preponderance of the evidence."
Jackson fails to show a manifest error warranting appellate review. 	Even
if the court applied the incorrect standard, Jackson's communications with his
attorney provide no indication that he failed to understand the charges against
him or was unable to assist his attorney when he pleaded guilty. 	And Muscatel's
report presented no evidence that Jackson was incompetent to stand trial or to
23 State v. DeLauro, 163 Wn. App. 290, 296, 258 P.3d 696 (2011) (citing
State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 	177 (1991); 	City of Seattle v.
Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985)).
24 State v. Smith, 74 Wn. App. 844, 850, 875 P.2d 1249 (1994).
25 State v. Benn, 120 Wn.2d 631, 662, 845 P.2d 289 (1993); Ortiz, 104
Wn.2d at 483-84.
26 41 Wn. App. 303, 309, 704 P.2d 1206 (1985).
27 39 Wn. App. 437, 441, 693 P.2d 741 (1985).
-13-

NO. 69423-5-1 /14
plead guilty. 	The State's evidence suggests that Jackson was lucid and tried to
appear incompetent to benefit his case. 	Indeed, Jensen told the court that
Jackson 	understood 	the 	charges against him and 	was sometimes helpful in
analyzing 	the 	case. 	Nothing 	in 	the 	record 	about 	Jackson's 	appearance,
demeanor, or conduct during the proceedings suggests incompetence.
Finally, Jackson alleges that the trial court abused its discretion when it
imposed an 	order prohibiting 	contact with 	Caster for life. 	We also 	review
sentencing conditions for an abuse of discretion.28 	This court will usually uphold
sentencing conditions if they are reasonably crime related.29
RCW 9.94A.505(8) permits a court to impose and enforce crime-related
prohibitions as part of any sentence. A "crime related prohibition" is a court order
"prohibiting conduct that directly relates to the circumstances of the crime for
which the offender has been convicted."30 	A court may impose crime-related
prohibitions "for a term of the maximum sentence to a crime, independent of
conditions of community custody."31 	Crime-related 	prohibitions may include
orders prohibiting contact with witnesses.32
28 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008) (citing State v.
Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)).
29 Warren, 165 Wn.2d at 32.
30RCW9.94A.030(10).
31 Warren, 165 Wn.2d at 32 (citing State v. Armendariz, 160 Wn.2d 106,
112, 120, 156P.3d201 (2007)).
32 State v. Janda, 174 Wn. App. 229, 235, 298 P.3d 751 (2012) (citing
RCW 9.94A.505(8), review denied, 176 Wn.2d 1032, cert denied, 134 S. Ct. 221
(2013); Armendariz, 160 Wn.2d at 110); State v. Ancira, 107 Wn. App. 650, 656,
27 P.3d 1246 (2001).
-14-

NO. 69423-5-1/15
Jackson pleaded guilty to first degree assault against Greenhaigh and
second degree assault against Caster. 	The maximum sentence for first degree
assault is life and 	the 	maximum 	sentence for second 	degree assault is 	10
years.33 	Because Caster witnessed Jackson's assault against Greenhaigh and
the assault against her arose from the assault against Greenhaigh, the trial court
did not abuse its discretion when it prohibited contact with Caster for life.
CONCLUSION
Because Jackson fails to establish grounds entitling him to withdraw his
guilty 	plea, a 	manifest error affecting 	a 	constitutional 	right 	allowing 	him 	to
challenge the trial court's denial of his motion for a competency evaluation, or
that the trial court abused its discretion when it prohibited contact with Caster for
life, we affirm.
WE CONCUR:
Ii/^^qv. 	^r 	Qua^ 	-
33 RCW9A.36.011(2); RCW 9A.20.021(1)(a); RCW 9A.36.021(2)(a); RCW
9A.20.021(1)(b).
-15-