State Of Washington, V David M. Kalac ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
September 7, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47506-5-II
Respondent,
v.
DAVID MICHAEL KALAC, UNPUBLISHED OPINION
Appellant.
LEE, J. — David Michael Kalac broke out of his jail cell, walked up the stairs, and entered
the cell of another inmate, Wayne Carlson. Kalac pulled Carlson off of his bunk, kicked him, and
put him in a headlock until jail guards arrived approximately two minutes later. Kalac was
convicted of first degree burglary, unlawful imprisonment, and attempted fourth degree assault as
a lesser included offense to the charged crime of attempted first degree murder.
On appeal, Kalac argues that (1) insufficient evidence was presented to convict him of
burglary because the State did not prove (a) Carlson’s cell constituted a “building,” nor that (b)
Kalac’s entry or remainder in Carlson’s cell was “unlawful”; (2) insufficient evidence was
presented to convict him of unlawful imprisonment; (3) the trial court’s dismissal without
prejudice of his attempted murder charge violates double jeopardy; (4) he received ineffective
assistance of counsel when his attorney failed to object to, and signed, the order dismissing the
No. 47506-5-II
attempted murder charged without prejudice; and (5) appellate costs should not be awarded against
him.
We hold that sufficient evidence exists to persuade a rational trier of fact beyond a
reasonable doubt that Kalac was guilty of first degree burglary and unlawful imprisonment. We
also hold that the trial court’s dismissal without prejudice of his attempted murder charge violates
double jeopardy, and accordingly, we do not address his ineffective assistance of counsel claim.
Finally, we do not award appellate costs against Kalac. We affirm, but remand for the trial court
to dismiss the attempted first degree murder charge with prejudice.
FACTS
In December 2014, Kalac and Carlson were incarcerated in Unit B of the Kitsap County
Jail. Unit B has two floors with jail cells on each floor and a dayroom on the lower floor. Each
cell is equipped with a speaker and button to activate the speaker, which allows for two-way
communication between the cell and the guards. The door to each cell locks automatically when
it is closed. The door to each cell has a window, allowing people to speak through the doors. The
dayroom is a common area that is used by the inmates of Unit B at different times depending on
which floor of Unit B they are housed; the inmates housed on the lower floor are not in the dayroom
at the same time as inmates from the upper floor. One wall of the dayroom is a one-way mirror,
allowing guards to observe the activity in the dayroom without being in the dayroom. The one-
way mirror also enabled the inmates housed on the lower floor to see the majority of the cells on
the second floor. Inmates housed in the lower floor are not allowed on the upper floor, and no
inmate is allowed in another inmate’s cell.
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Kalac was housed in the lower floor of Unit B and Carlson was housed in the upper floor.
Sometime in early December 2014, while Carlson was in the dayroom and Kalac was locked in
his cell, Carlson flipped Kalac off. The two subsequently engaged in a heated verbal exchange at
Kalac’s cell door, with Carlson in the dayroom and Kalac locked in his cell. Kalac decided to fight
Carlson.
On December 9, 2014, Kalac returned to his cell from the dayroom and placed a playing
card in the locking mechanism of his cell door. He then closed his cell door, making it appear to
the guards as though he were locked in, while the playing card kept the door from locking. Kalac
watched the reflection in the one-way mirror as Carlson returned to his cell but did not close his
cell door. Kalac then pushed his cell door open and proceeded upstairs to Carlson’s cell. The
video recordings of the dayroom show it was 4:58 p.m.
Kalac entered Carlson’s cell, closed the door behind him, and pulled Carlson off of the top
bunk. Kalac’s and Carlson’s accounts of the following assault differ, but both agree that Kalac
kicked and tried to punch Carlson before putting Carlson in a headlock. During the scuffle, Carlson
was able to push the emergency button in his cell repeatedly and Carlson’s head hit the sink in the
cell. Three officers responded, ordering Kalac to stop and get on the ground with his hands behind
his back. Kalac complied and the officers entered. The video recordings of the dayroom show the
officers entering Carlson’s cell at 5:00 p.m.
Kalac was charged with first degree burglary, unlawful imprisonment, and first degree
attempted murder. A jury found him guilty of first degree burglary, unlawful imprisonment, and
attempted fourth degree assault as a lesser included offense to the attempted first degree murder
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charge.1 The jury also found by special verdict that Kalac restrained Carlson without consent and
by physical force, intimidation, or deception. The trial court entered an order dismissing the
attempted first degree murder charge without prejudice. Kalac was sentenced to a total of 41
months and, finding that Kalac did not have the ability to pay legal financial obligations (LFOs),
the sentencing court imposed only mandatory LFOs. Kalac appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
A challenge to the sufficiency of the evidence to convict is a constitutional question we
review de novo. State v. Rich, 184 Wash. 2d 897, 903, 365 P.3d 746 (2016). Our Supreme Court in
Rich explained this court’s review on a sufficiency of the evidence challenge as follows:
The State bears the burden of proving all the elements of an offense beyond
a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. To determine if
sufficient evidence supports a conviction, we consider “‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’”
State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (some emphasis omitted)
(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). “[I]nferences based on circumstantial evidence must be reasonable and
cannot be based on speculation.” State v. Vasquez, 178 Wash. 2d 1, 16, 309 P.3d 318
(2013). A “‘modicum’” of evidence does not meet this standard. Jackson, 443
U.S. at 320.
Rich, 184 Wash. 2d at 903.
1
Because the jury found Kalac guilty of fourth degree assault as the lesser included offense to the
attempted first degree murder charge, no mistrial was declared on the attempted first degree murder
charge.
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1. Burglary Conviction
Kalac argues insufficient evidence was presented at trial to convict him of burglary.
Specifically, Kalac argues insufficient evidence was presented to establish that Carlson’s cell was
a “building,” and that his entry into or remaining within Carlson’s cell was “unlawful,” as each
term is used in the burglary statute. Br. of Appellant at 9-17. We hold that sufficient evidence
was presented to show Carlson’s cell was a “building” and Kalac’s entry and remainder in
Carlson’s cell was “unlawful” as those terms are defined in Washington’s statutory proscription
of burglary.
Kalac was convicted of first degree burglary. First degree burglary is statutorily proscribed
in Washington as follows:
A person is guilty of burglary in the first degree if, with intent to commit a crime
against a person or property therein, he or she enters or remains unlawfully in a
building and if, in entering or while in the building or in immediate flight therefrom,
the actor or another participant in the crime (a) is armed with a deadly weapon, or
(b) assaults any person.
RCW 9A.52.020(1). Thus, first degree burglary requires, as elements to the offense, that the
defendant enter or remain “unlawfully” in a “building.” RCW 9A.52.020(1).2
We review issues of statutory construction de novo. State v. Wentz, 149 Wash. 2d 342, 346,
68 P.3d 282 (2003). We look to the statute’s plain language in order to give effect to legislative
intent, giving statutory terms their plain and ordinary meaning. Id. at 346. Whenever possible,
statutes are read in harmony and in such manner as to give each effect. State v. Bays, 90 Wash. App.
2
The to-convict jury instruction mirrored this language. Kalac does not assign error to any of the
jury instructions.
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No. 47506-5-II
731, 735, 954 P.2d 301 (1998). Statutes are interpreted to give effect to all language in them and
to render no portion meaningless or superfluous. State v. J.P., 149 Wash. 2d 444, 450, 69 P.3d 318
(2003).
a. “Building”
Kalac argues that jail cells are not “buildings” within the meaning of the statute, but at the
very least, the rule of lenity requires the adoption of a narrower definition of “building.” Br. of
Appellant at 15. In support, he uses the definitions of “building” from State v. Thomson, 71 Wn.
App. 634, 861 P.2d 492 (1993); State v. Deitchler, 75 Wash. App. 134, 876 P.2d 970 (1994), review
denied, 125 Wash. 2d 1015 (1995); and State v. Miller, 91 Wash. App. 869, 960 P.2d 464 (1998), review
denied, 137 Wash. 2d 1012 (1999), to argue that in order for a place to be considered a building, there
must be “a separate ‘privacy interest’ from other tenants in their space.” Br. of Appellant at 12
(quoting Thomson, 71 Wash. App. at 645). We hold that jail cells are “buildings” for purposes of
the burglary statute.
RCW 9A.04.110(5) provides the statutory definition for “building” as follows:
(5) “Building,” in addition to its ordinary meaning, includes any dwelling,
fenced area, vehicle, railway car, cargo container, or any other structure used for
lodging of persons or for carrying on business therein, or for the use, sale, or deposit
of goods; each unit of a building consisting of two or more units separately secured
or occupied is a separate building.
“Dwelling” is “any building or structure . . . or a portion thereof, which is used or ordinarily used
by a person for lodging.” RCW 9A.04.110(7).
In Thomson, a woman invited Thomson back to her house one night, whereupon she
rebuffed his sexual advances and told him he could sleep in the guest bedroom. 71 Wash. App. at
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636. The woman returned to her room and locked her bedroom door behind her. Id. During the
night, Thomson broke through the woman’s bedroom door and raped her. Id. On appeal, the court
held that the woman’s entire home constituted a “building” under RCW 9A.04.110(5), rather than
her individual room. Id. at 646.
The Thomson court held that the phrase of RCW 9A.04.110(5) that follows the
semicolon—“each unit of a building consisting of two or more units separately secured or occupied
is a separate building”—was intended by the legislature to define each unit within a multi-unit
structure as an individual “building” where each unit is occupied by different tenants. Id. at 645.
The court reasoned that, in a multi-unit structure, “each tenant has a privacy interest in his or her
room or apartment, and that interest is separate from the interests of other tenants.” Id. The court
further held that applying “the rule of lenity would lead us to the same construction of the statute,”
specifically, that “RCW 9A.04.110(5) should be construed as applying to multi-unit buildings in
which two or more rooms are occupied or intended to be occupied by different tenants separately,
but not to dwellings wholly occupied by a single tenant.”3 Id. at 645-46.
A year later, the issue of what constituted a “building” under RCW 9A.04.110(5) was again
considered in Deitchler, 75 Wash. App. at 136. The Deitchler court held that an evidence locker in
a police station that was ten inches high, by ten inches wide, and about two feet deep, was not a
“building” under RCW 9A.04.110(5), and therefore, a burglary conviction could not be affirmed.
Id. at 135, 137.
3
The court defined the rule of lenity, “The rule of lenity provides that ambiguity in a criminal
statute should be resolved in favor of the defendant.” Thomson, 71 Wash. App. at 645.
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The court explained:
RCW 9A.04.110(5) has two parts, one preceding and one following the
semicolon. The first deals with “buildings” not within a larger “building.” The
second deals with “buildings” within a larger building. According to the second, a
structure or space within a larger building will be a “separate building” if the larger
building has “two or more units separately secured or occupied”, and the structure
or space being considered is one of those “units”. By negative implication, a
structure or space within a larger building will not be a “separate building” unless
the larger building has “two or more units separately secured or occupied”, and the
structure or space being considered is one of those “units”.
Id. at 137. Because the police station was occupied by a single tenant, the Deitchler court held
there was no separate privacy interest between the police station and the evidence locker such that
the evidence locker could be considered a separate building. Id.
Finally, the definition of “building” under RCW 9A.04.110(5) was again considered in
Miller. 91 Wash. App. 869. In Miller, an apartment manager discovered Miller in or around the
basement storage locker of one of the apartment’s tenants and called the police. Id. at 870-71. The
police tracked Miller’s car and called the manager to identify Miller and the items in Miller’s
possession. Id. at 871. The manager was able to unlock a padlock found in Miller’s jacket with
his manager’s keys and identify luggage in Miller’s back seat that came from a storage locker of
one of the apartment’s tenants. Id.
The Milller court held that the storage locker was considered a separate “building,” apart
from the larger apartment building within which the storage locker was located. Id. at 870. The
court reasoned that “the storage locker Miller broke into was large enough to accommodate a
human being, that is, to allow entry or occupation.” Id. at 873. “Moreover, the padlocked, door-
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No. 47506-5-II
accessed unit was secured from other tenants, the manager or building owners of the apartment
complex, indicat[ed] a separate privacy interest.” Id.
Here, the language of the statute defining “building” unambiguously includes a jail cell,
and the reasoning expressed in Thomson, Deitchler, and Miller support the definition of “building”
to include a jail cell. First, jail cells are “used for lodging of persons,” and therefore fit the plain
language of the statutory definitions of “building” and “dwelling” as defined in the burglary
statute. RCW 9A.04.110(5) (“‘Building,’ . . . includes any dwelling . . . or any other structure used
for lodging of persons”); RCW 9A.04.110(7) (“‘Dwelling’ means any building or structure . . . or
a portion thereof, which is used or ordinarily used by a person for lodging”). Second, Thomson,
Deitchler, and Miller each held that the portion of the definition of “building” that follows the
semicolon was intended by the legislature “to define ‘building’ to include each unit of a multi-unit
building where each unit is occupied by a different individual.” Miller, 91 Wash. App. at 872. A
jail is a multi-unit building where each unit is occupied by a different individual or, in this case, a
different pair of individuals.
Kalac’s argument that there must be “a separate ‘privacy interest’ from other tenants” in
order for it to be a considered a building fails because the reasoning from Thomson, Deitchler, and
Miller support the opposite conclusion. Br. of Appellant at 12 (quoting Thomson, 71 Wash. App. at
645). Here, the inmates have an interest in their respective jail cells that are “separate from the
interests of [the] other tenants,” where those “other tenants” are the other inmates. Thomson, 71
Wash. App. at 645 (reasoning that units within a multi-unit structure are separate buildings for
purposes of the burglary statute when the tenants of each unit have an interest in their unit that “is
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No. 47506-5-II
separate from the interests of other tenants.”). Additionally, within Unit B, there are 13 cells on
each floor and each cell has its own locking mechanism; thus, the jail is “the larger building [and]
has ‘two or more units separately secured or occupied,’” making each “unit,” or jail cell, a
“separate building.” Deitchler, 75 Wash. App. at 137 (reasoning that a space is considered a
“‘separate building’ if the larger building has ‘two or more units separately secured or occupied.’”).
Finally, each cell is “large enough to accommodate a human being” and is designed to be secured
from other inmates, and, therefore, each cell is considered a “building” for the purposes of the
burglary statute. Miller, 91 Wash. App. at 873 (reasoning that a space was considered a building
when it “was large enough to accommodate a human being, that is, to allow entry or occupation,”
and was secured from other tenants but not the manager of the larger structure).
In conclusion, we hold that jail cells are separate buildings within the meaning of RCW
9A.52.020(1) and RCW 9A.04.110(5), and that sufficient evidence was presented to establish that
Carlson’s cell was a “building.” The rule of lenity does not apply to give Kalac’s interpretation
effect because there is no ambiguity in the statutes as they relate to the inclusion of a jail cell within
the definition of a “building” that can be burglarized under RCW 9A.52.020(1) and RCW
9A.04.110(5).
b. “Unlawfully”
Kalac argues that even if the cell qualified as a building, the State failed to prove that he
“unlawfully” entered or remained in Carlson’s cell. Br. of Appellant at 16. Specifically, Kalac
argues that the State did not present any evidence of jail regulations that forbade inmates from
entering another inmate’s cell. We disagree.
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No. 47506-5-II
Former RCW 9A.52.010(3) (2011) provides the statutory definition for “[e]nters or
remains unlawfully.”
A person “enters or remains unlawfully” in or upon premises when he or she is not
then licensed, invited, or otherwise privileged to so enter or remain.
“‘Premises’ includes any building [or] dwelling.” Former RCW 9A.52.010(1). “The law of
burglary was designed to protect the dweller, and hence, the controlling question here is occupancy
rather than ownership.” State v. Schneider, 36 Wash. App. 237, 241, 673 P.2d 200 (1983).
Here, Carlson testified that there is a rule book and inmates are provided those rules when
they are booked into the jail. He testified the rules do not allow inmates from the lower floor to
go to the second upper floor and that inmates are not allowed to go into other inmates’ cells. Kalac
testified that he knew he was not supposed to go into another inmate’s cell, that he should not have
been in Carlson’s cell, and that he intentionally went into Carlson’s cell without invitation. He
further testified that he knew he would be seen and caught in Carlson’s cell. Finally, the cell
Carlson occupied was a “premises” for the purposes of the burglary statute because it was a
“building.” See subsection a, supra. Accordingly, the testimony presented at trial established
Kalac was not “licensed, invited, or otherwise privileged to so enter or remain” in the cell Carlson
occupied, and therefore, we hold Kalac’s entry and remainder in the cell Carlson occupied was
“unlawful.” Former RCW 9A.52.010(3).
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact
could have found beyond a reasonable doubt the elements of burglary Kalac challenges. Therefore,
we affirm his conviction for first degree burglary.
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No. 47506-5-II
2. Unlawful Imprisonment Conviction
Kalac argues that the evidence presented was insufficient to convict him of unlawful
imprisonment. Specifically, Kalac argues that he did not restrain Carlson’s movements in a
“substantial” or “considerable” manner. Br. of Appellant at 19, 20, 21. We hold that sufficient
evidence was presented to convict Kalac of unlawful imprisonment.
“A person is guilty of unlawful imprisonment if he or she knowingly restrains another
person.” RCW 9A.40.040(1). “‘Restrain’ means to restrict a person’s movements without consent
and without legal authority in a manner which interferes substantially with his or her liberty.
Restraint is ‘without consent’ if it is accomplished by (a) physical force, intimidation, or
deception.” RCW 9A.40.010(6). For restraint to be substantial, there must be a “‘real’ or
‘material’ interference with the liberty of another as contrasted with a petty annoyance, a slight
inconvenience, or an imaginary conflict.” State v. Robinson, 20 Wash. App. 882, 884, 582 P.2d 580
(1978), aff’d, 92 Wash. 2d 357, 597 P.2d 892 (1979).
Here, Kalac entered Carlson’s cell and closed the door, knowing that when the door closed
it would lock and remain so until unlocked by the guards who would come break up the fight.
Kalac testified that when he heard the guards enter the dayroom downstairs and yell “lockdown”
he put Carlson in a headlock and “wanted to hold on to Mr. Carlson long enough for the guards to
get there” to the door of Carlson’s cell. 6 VRP at 909. Kalac held Carlson in a headlock inside
the locked cell until ordered to release him by the guards. The guards then unlocked the cell and
opened the door. Under these facts, viewed in the light most favorable to the prosecution, a rational
trier of fact could find that Kalac knowingly restricted Carlson’s movements without Carlson’s
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No. 47506-5-II
consent or legal authority by physical force. Therefore, we hold that sufficient evidence was
presented to convict Kalac of unlawful imprisonment.
Kalac argues that our Supreme Court changed the standard for “substantial” from the
“‘real’ or ‘material’ interference with the liberty of another as contrasted with a petty annoyance,
a slight inconvenience, or an imaginary conflict,” as stated in Robinson, 20 Wash. App. at 884, to
“considerable,” and cites to State v. McKague, 172 Wash. 2d 802, 805, 262 P.3d 1225 (2011), and
Rich, 184 Wash. 2d at 904-05. We disagree.
In McKague, our Supreme Court considered a challenge to the sufficiency of the evidence
to convict on a second degree assault charge. 172 Wash. 2d at 805. Specifically, the court considered
the definition of “substantial” for the element of “substantial bodily harm” under second degree
assault, RCW 9A.36.021(1)(a).4 McKague, 172 Wash. 2d at 805. Our Supreme Court held that the
dictionary definition of “substantial” as “‘something having good substance or actual existence,’
would make practically any demonstrable impairment or disfigurement a ‘substantial’ injury
regardless of how minor.” McKague, 172 Wash. 2d at 806 (quoting State v. McKague, 159 Wash. App.
489, 503 n.7, 246 P.3d 558 (2011)). The court held “instead that the term ‘substantial,’ as used in
RCW 9A.36.021(1)(a) [second degree assault], signifies a degree of harm that is considerable and
necessarily requires a showing greater than an injury merely having some existence.” McKague,
172 Wash. 2d at 806.
4
“A person is guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly
inflicts substantial bodily harm.” RCW 9A.36.021(1).
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In Rich, our Supreme Court considered a challenge to the sufficiency of the evidence to
convict on a reckless endangerment charge. 184 Wash. 2d at 900-01. To convict on the reckless
endangerment charge, the State had to prove there was a “‘substantial risk of death or serious
physical injury.’” Rich, 184 Wash. 2d at 904 (quoting RCW 9A.36.050(1)). Our Supreme Court
recognized there was no statutory definition for “substantial” as it is used in RCW 9A.36.050(1),
and looked to the definition it used in McKague, “as ‘considerable in amount, value, or worth’ and
more than just ‘having some existence.’” Rich, 184 Wash. 2d at 905 (quoting McKague, 172 Wash. 2d
at 806).
Here, we decline to hold that the Robinson definition of “substantial” has been replaced
with the McKague and Rich definition for “substantial.” Robinson specifically addressed the term
“substantial” as it is used in the unlawful imprisonment statute. 20 Wash. App. at 883-85. Unlawful
imprisonment is proscribed in chapter 9A.40 RCW. McKague and Rich addressed the term
“substantial” as it is used in the second degree assault and reckless endangerment statutes, both of
which are proscribed in chapter 9A.36 RCW. The definition from Robinson remains good law, at
least in the context of sufficiency challenges to unlawful imprisonment convictions. See e.g. State
v. Washington, 135 Wash. App. 42, 49-50, 143 P.3d 606 (2006) (stating, in the context of a
sufficiency of the evidence challenge to an unlawful imprisonment conviction, “A substantial
interference is ‘a real or material interference with the liberty of another as contrasted with a petty
annoyance, a slight inconvenience, or an imaginary conflict,” (quoting Robinson, 20 Wash. App. at
884), review denied, 160 Wash. 2d 1017 (2007)).
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No. 47506-5-II
But, even applying the definition of “substantial” that our Supreme Court has used for
second degree assault and reckless endangerment, we still hold that sufficient evidence was
presented at trial to convince a rational trier of fact of Kalac’s guilt beyond a reasonable doubt. As
recited above, Kalac entered Carlson’s cell and closed the door knowing it could not be opened
from the inside, and he subsequently placed Carlson in a headlock so that he could not move until
the guards arrived. Testimony at trial showed the headlock resulted in Carlson feeling like his
circulation and ability to breathe were cut off, and resulted in red marks on the side of Carlson’s
throat. Viewed in the light most favorable to the State, this evidence was sufficient to persuade a
rational trier of fact that Kalac’s restraint of Carlson was “‘considerable in amount, value, or worth’
and more than just ‘having some existence,’” as our Supreme Court has defined the term
“substantial” in other chapters of the RCW. Rich, 184 Wash. 2d at 905 (quoting McKague, 172
Wash. 2d at 806). Therefore, we hold that Kalac’s challenge to the sufficiency of the evidence to
convict him of unlawful imprisonment fails.
B. DOUBLE JEOPARDY
Kalac argues that the trial court erred in signing an order of dismissal without prejudice on
the charge of attempted first degree murder. We agree and remand to the trial court to dismiss the
attempted first degree murder charge with prejudice.
The federal and Washington constitutions prohibit placing defendants in double jeopardy.
WASH. CONST. art. I, § 9; U.S. CONST. amend. V. The prohibitions on double jeopardy provide
that “a conviction on a lesser-included offense bars a subsequent trial on the greater offense.”
Illinois v. Vitale, 447 U.S. 410, 421, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980).
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Here, the State “concedes that on this record it may not retry Kalac on that charge” of
attempted first degree murder of Carlson. Br. of Resp’t at 23. Because the jury found Kalac guilty
of fourth degree assault as the lesser included offense for the attempted first degree murder charge,
we accept the State’s concession and remand for dismissal of the attempted first degree murder
charge with prejudice.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Kalac argues that he received ineffective assistance of counsel when his attorney failed to
object to, and instead signed, the order dismissing the attempted murder charge without prejudice.
We do not reach this issue because the relief Kalac requests in asserting his ineffective assistance
of counsel claim—that the charge be dismissed with prejudice—has been granted on double
jeopardy grounds. See Section B, supra.
D. Appellate Costs
Kalac argues that any requests for appellate costs to be imposed on him be denied because
the trial court determined that he did not have the present or future ability to pay legal financial
obligations. The State asserts that it “has no intention of seeking appellate costs in this case.” Br.
of Resp’t at 24.
RAP 15.2(f) provides that “[t]he appellate court will give a party the benefits of an order
of indigency throughout the review unless the trial court finds the party’s financial condition has
improved to the extent that the party is no longer indigent.” Here, an order of indigency was filed
with the trial court and the record does not reflect a finding by the trial court that Kalac’s financial
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No. 47506-5-II
condition has improved beyond indigency. Therefore, we do not impose any appellate costs on
Kalac in this case.
We affirm but remand for the trial court to dismiss the attempted first degree murder
charge with prejudice.
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.
Lee, P.J.
We concur:
Melnick, J.
Sutton, J.
17