State Of Washington, Respondent/cr-appellant v. Bria Walker, Appellant/cr-respondent ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 77707-6-I
Respondent,
v. DIVISION ONE
BRIA BEATRICE WALKER, UNPUBLISHED OPINION
Appellant. FILED: July 29, 2019
LEAcH, J. — Bria Walker was convicted of second degree possession of
stolen property, theft of a motor vehicle, and two counts of second degree
identity theft after being terminated from Adult Drug Treatment Court (drug court).
She appeals the superior court’s denial of her request for a drug offender
sentencing alternative (DOSA) and the imposition of four legal financial
obligations (LFOs). She also challenges the adequacy of the court’s findings of
fact and conclusions of law entered upon her convictions but not the sufficiency
of the evidence to support the convictions.
First, the court reasonably exercised its discretion when it denied her
DOSA, appropriately considering the record before it. And Walker does not show
a lack of impartiality. We affirm the denial of the DOSA.
No. 77707-6-1 /2
Second, in light of State v. Ramirez1 and the recent amendments to RCW
36.18.020(2)(h), RCW 2.30.030(5), and RCW 10.01.160(3), we remand for the
superior court to strike the filing fee, deoxyribonucleic acid (DNA) fee, and drug
court fee. But because RCW 7.68.035(1)(a) requires that the sentencing judge
impose a victim penalty assessment on a defendant convicted of a crime, we
affirm this fee.
Last, Walker cannot challenge the adequacy of the court’s written findings
and conclusions under CrR 6.1(d) for the first time on appeal where she makes
no challenge to the sufficiency of the evidence to support her convictions.
We affirm in part and remand for the superior court to strike the relevant
fees.
BACKGROUND
In December 2016, the State charged Walker with second degree
possession of stolen property, theft of a motor vehicle, and two counts of second
degree identity theft. On February 8, 2017, the superior court approved Walker’s
entry into drug court.
While she was in drug court, two of her urinalyses (UA5) tested positive for
methamphetamine, she missed two group sessions and a doctor’s appointment,
she failed to appear for one UA, and she failed to appear in court on August 11,
2017. The drug court issued a bench warrant.
1191 Wash. 2d 732, 747, 426 P.3d 714 (2018).
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No. 77707-6-1 I 3
In early September, police arrested her on new charges for possession of
drug paraphernalia and retail theft in the third degree. Later that month, the
superior court terminated her from drug court “[g]iven [her] new criminal charges,
[her] being on warrant status, basically a complete failure of drug court.”
The superior court conducted a stipulated bench trial and found Walker
guilty as charged and entered findings of facts and conclusions of law. Walker
requested a DOSA. The Department of Corrections (DCC) conducted a
screening and recommended against her receiving a DOSA.
At the sentencing hearing, the prosecution opposed a DOSA and
recommended the court sentence Walker to the upper end of the standard range.
Walker’s counsel said that a DOSA by itself would “be the longest prison time
she’s ever done, by a great deal.” Counsel asserted that the ongoing supervision
under DOSA would make Walker less of a risk to the community than she would
be if given the standard range sentence with less monitoring. Walker said she
was sorry for giving up on herself and told the court that she was “not done
fighting” her addiction. Walker’s mother told the court that a DOSA would help
Walker battle her serious addiction.
The court denied Walker’s DOSA request and sentenced her to 57 months
in prison and 12 months of community custody. It also ordered a chemical
dependency evaluation and required her to follow any recommended treatment.
It imposed a $500 victim penalty assessment, a $200 filing fee, a $100 DNA fee,
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No. 77707-6-1 /4
and a $900 drug court fee. It waived all other fines, fees, costs, and
assessments.
Walker appeals.
ANALYSIS
Denial of Walker’s DOSA Request
Walker asserts that the superior court did not exercise unbiased discretion
when it denied her DOSA request. We disagree.
First, she contends that the trial court categorically denied her DOSA
request. RCW 9.94A.660 authorizes a judge to order a reduced sentence,
treatment, and supervision to an eligible nonviolent drug offender.2 We generally
do not review a decision whether to grant a DOSA.3 But we may review the
procedure the court used to reach its decision.4 If a trial court categorically
refuses to consider a statutorily authorized sentencing alternative, it abuses its
discretion and commits reversible error.5
For example, in State v. Grayson,6 the Washington Supreme Court
reversed Grayson’s sentence because the trial court denied him a DOSA
2 State v. Grayson, 154 Wash. 2d 333, 337, 111 P.3d 1183 (2005).
~ Grayson, 154 Wash. 2d at 338 (citing State v. Bramme, 115 Wash. App. 844,
850, 64 P.3d 60 (2003)); State v. Williams, 149 Wash. 2d 143, 146, 65 P.3d 1214
(2003).
~ Williams, 149 Wash. 2d at 147.
~ Grayson, 154 Wash. 2d at 342 (quoting State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997)).
6154 Wash. 2d 333, 342, 111 P.3d 1183 (2005).
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No. 77707-6-1 / 5
“‘mainly’ because [the court] believed there was inadequate funding to support
the program” and “did not articulate any other reasons for denying the DOSA.”
Here, the trial court considered all of the evidence and arguments before it
and addressed them on the record. These included DOC’s recommendation
against a DOSA, the prosecution’s argument against a DOSA, Walker’s
counsel’s argument for a DOSA, Walker’s argument for a DOSA, and Walker’s
mother’s e-mail and her statements to the court in support of a DOSA. The trial
court, addressing Walker, described its reasons for denying her DOSA request:
You’ve been using for a long time. We’ve got more than a dozen
inpatient treatment programs for you, three here in this drug court,
different modalities. .
You’ve been on methadone. You’ve been on Suboxone.
You’ve . attempted Vivitrol. The Vivitrol didn’t work because—
. .
well, it actually did work because you used meth instead. You got
around the Vivitrol, because Vivitrol is a heroin blocker, [an] oploid
blocker, so you used meth. . I don’t know what [you mean when
. .
you say], “I’m not going to stop fighting”; you stopped fighting a long
time ago. You just have. You’re fighting for your addiction. I don’t
see where a therapeutic setting will do you any good, because the
therapeutic setting that we’ve had in these different modalities does
not change your behavior.
And so in the classic talk of recovery, clearly, bottom line is
you haven’t reached bottom. The consequences are not severe
enough for you to make any changes. There’s no doubt in my
. . .
mind that at times you truly do want to be clean and sober. I don’t
think there’s any doubt in my mind about that, but you haven’t, in
any respect, given yourself any permission to be clean and
sober. . .
And so my thought here is just [to] sentence you to the
maximum amount that I can do, 57 months, and maybe during that
period of time, the gravity of your addiction will maybe impress
upon you that you need to change your behavior. Because you
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No. 77707-6-1 / 6
have every tool at your disposal, you’ve been immersed in the
recovery field. .
[Your mother] thinks there’s another way to work with you. I
don’t know any other way to work with you, because when
somebody won’t work with themselves, there’s no way for us to
work with them. So until you’re ready to forgive yourself, until
you’re ready to accept yourself, there’s nothing left for you out here.
I wish it was different, but it isn’t.
So I’m going to deny the motion for a prison-based DOSA
and sentence you to the terms [that] you contracted in for.
Contrary to Walker’s claim, the superior court considered far more than
simply Walker’s termination from drug court. It did not categorically deny her the
DOSA.
Second, Walker contends that the judge exhibited unfairness and bias
toward her during the hearing accepting her into drug court and at the sentencing
hearing. For this reason, she asks this court to reverse and remand for
resentencing before a different judge. The State contends that Walker cannot
raise this issue on appeal because she did not raise it in the trial court. It also
contends that the trial judge did show or appear to show unfairness or bias
toward Walker.
Generally, a party may raise on appeal only those issues raised at the trial
court.7 But an appellant may raise an issue for the first time on appeal if it
involves a manifest error affecting a constitutional right.8 This test, however,
requires a trial court error. This court must preview the merits of the claimed
~ RAP 2.5(a).
8 RAP 2.5(a).
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No. 77707-6-1 I 7
constitutional violation to determine whether the argument is likely to succeed.9
Only if an error did occur does this court address whether the error caused actual
prejudice and was therefore manifest.1°
The federal and state constitutions each guarantee a criminal defendant
the right to an impartial court for trial and sentencing proceedings.11 Under “the
appearance of fairness doctrine, a judicial proceeding is valid if a reasonably
prudent, disinterested observer would conclude that the parties received a fair,
impartial, and neutral hearing.”12
Drug court is therapeutic court, where a judge has statutory authority to
work “in ways that depart from traditional judicial processes to allow defendants
or respondents the opportunity to obtain treatment services to address particular
issues that may have contributed to the conduct that led to their arrest.”13
Walker relies on comments the trial judge made in February 2017 in an
exchange with Walker before accepting her into drug court and at the sentencing
hearing. At the February 2017 hearing, the judge spoke strongly to Walker and
to the other participants. Early in the proceeding, he asked Walker why she used
drugs every day.
~ In re Det. of Brown, 154 Wash. App. 116, 121-22, 225 P.3d 1028 (2010).
10 State v. Kirkman, 159 Wash. 2d 918, 935, 155 P.3d 125 (2007).
11 U.S. C0NsT. amends. VI, XIV; WAsH. C0NsT. art. I § 22; State v. Solis
Diaz, 187 Wash. 2d 535, 539-40, 387 P.3d 703 (2017).
12 Solis-Diaz, 187 Wash. 2d at 540 (citing State v. Gamble, 168 Wash. 2d 161,
187, 225 P.3d 973 (2010)).
13 RCW 2.30.030(1).
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No. 77707-6-1 I 8
MS. WALKER: I believe I’m an addict. I know I can’t use. I
still use.
THE COURT: Why? Because I’m an addict? It’s a circular
argument. It’s a cop-out. Uncomfortable now?
MS. WALKER: No, I’m not uncomfortable.
THE COURT: I haven’t even begun yet.
MS. WALKER: I just don’t have the answers yet. Hopefully
I’ll figure it out.
THE COURT: Would it blow your mind if I told you you did?
MS. WALKER: I mean.
THE COURT: You all do already.
Later, the judge asked Walker again why she used, and they had the
following exchange:
MS. WALKER: To hide my feelings. . ., I guess.
THE COURT: So you agree that you want to feel different.
That’s why you use, because you don’t like the way you feel when
you’re not using. Right?
MS. WALKER: My feelings.
THE COURT: Everybody with me? Not with me?
MS. WALKER: No, I mean, I am to a certain extent, but.
THE COURT: What extent?
MS. WALKER: Well, I mean, I don’t really use to like—well, I
mean, I’m sure I do. But I mean, I do it more because the lifestyle
and using is—
THE COURT: Bullshit.
MS. WALKER: —all I know.
THE COURT: Bullshit.
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No. 77707-6-1 I 9
MS. WALKER: It’s uncomfortable for me to be clean.
THE COURT: Right. It has nothing to do with the lifestyle.
These are all little excuses you’re making yourself so you don’t
really deal with the real issue. Lifestyle. Your lifestyle’s good.
Your lifestyle landed you talking in front of me in a court of law on a
Wednesday afternoon on February the 8, 2017.
What [is it] about that lifestyle that’s so appealing?
MS. WALKER: I didn’t say anything was appealing about it.
THE COURT: Lifestyle.
MS. WALKER: I said it’s all I know. I don’t have like any
silver memories of myself. So to be sober—
THE COURT: That’s cool.
MS. WALKER: —is very uncomfortable.
THE COURT: Why?
MS. WALKER: Because I don’t know how to.
THE COURT: Just quit using. I got you kind of sidetracked
on that one. So I started with the proposition that we use. Now
you’re telling me you’re closing me off now. That’s the international
body language sign. So we start with the proposition that we use to
make ourselves feel better or different, to change our perception, to
have a different reality because we don’t like what it was before we
used.
We don’t like our reality when we’re not using or we don’t
like our—ourselves when we’re not using. I know this, because
nobody in their right mind would continue to use if it made them feel
worse. That just doesn’t happen. It’s like hitting yourself over the
head with a hammer. So you must like something of it, and if
you’re honest about it, you like not thinking.
So logically, it follows, we don’t like where we’re at when
we’re not using. We don’t like who we are. We don’t like our
reality. We don’t like the feelings we have when we’re not using.
And there’s the answer. What is it here that we don’t like about
ourselves?
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No. 77707-6-1 /10
What’s the malfunction? What’s the hurt? What’s the
injury? What’s the anger? What’s the upset? What is it here that
keeps that voice going, the little voice that we hear that says we’re
no good and if people really knew who we were, they’d want
nothing to do with us, a voice that says we don’t deserve to be
happy, we don’t deserve success.
That voice here that says we don’t deserve to be clean and
sober. We’re pieces of shit, and if anybody really knew who we
were, they’d hate us as we hate ourselves.
Where is that voice coming from, that’s the question. Why
do you use? To shut the voice up. Am I right? Or am I right?
You[’ve] got to answer the question. Where is the voice coming
from? Answer the question, you’ll be free. You don’t answer the
question, we’re just playing games.
You have to drill down here. It’s not about not using. Hell.
About 10 years from now your brains are going to explode and
you’re going to say it had nothing to do with drugs. My addiction
has nothing to do with drugs. This has everything to do with in here
and this malfunction. It doesn’t make any sense any other way.
You got to ask the question. You got to have the courage to
do it. Is it hard? Hardest thing you’ll ever do in your lives. Hardest
thing you’ll ever do in your lives is to have that conversation and get
right by yourselves. There’s no other way, though. There’s no
other path.
I don’t believe in relapses. I just believe that you haven’t
answered the question sufficiently, that you hadn’t given it a full and
honest examination, that you haven’t drilled down to find out who
you are.
When did you start using?
MS. WALKER: When I was 13.
THE COURT: Thirteen. You have no idea who you are,
which is kind of sad. But it’s kind of cool in the sense that now you
can define who you want to be. They say that until your brains are
fully developed at the age of 25, if you dump a bunch of mood into
the mind-altering substances on top of it, it stops the natural growth
and progression.
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No. 77707-6-1 I 11
So I got a 20—13-year-old in a 27-year-old body over here,
who’s trying to search and find out who she is, but the beauty of it is
you can write your own damn story if you have the courage to do
so.
That’s what I do here, that’s my function, is to make sure
you’re engaging in that type of discovery. Anybody can sit here
and be like a probation officer, but I don’t want to do that. I don’t
care about that. I don’t care about your UA5. I don’t care about
your—I don’t care. What I care about is are you doing the work
necessary inside to make a goddamn difference. That’s what I care
about.
At the final sentencing hearing, the judge responded to Walker’s
statement that she “was not done fighting” with the statement quoted earlier in
this opinion.
Later, when he sentenced her, he said, ‘[U]ntil you’re ready to forgive
yourself, until you’re ready to accept yourself, there’s nothing left for you out
here. I wish it was different, but it isn’t.”
Walker pulls phrases from the exchanges, such as, “I don’t believe in
relapses,” “Uncomfortable now?,” and “you stopped fighting long ago.” But when
considered in the context of the entire February 2017 exchange and the
complete sentencing hearing, these phrases do not establish bias. For example,
Walker contends the judge called her a liar. At the initial hearing, the judge did
question her honesty when he commented, “Bullshit,” after she said the lifestyle
was all she really knew. But then she revealed that it was “uncomfortable” for
her “to be clean,” and the judge responded, “Right.” Although a judge should not
use profanity, this exchange does not establish bias. Rather, it shows the
judge’s intent to engage Walker in the therapeutic process of addressing her
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No. 77707-6-1 /12
addiction. During that same proceeding, he also welcomed her to drug court,
spoke of her inherent capacity to do the needed work, and displayed no
indication that he anticipated she would fail in the program.
An exchange between Walker and the trial judge at a May 2017 hearing
illustrates the judge’s attitude toward Walker. Walker appeared because she had
not attended a UA test. She was also late to the hearing. After the judge
imposed sanctions for this misconduct, the following exchange occurred:
THE COURT: Anything you need from me?
MS. WALKER: No. Just keep pushing me.
THE COURT: Okay. I can do that.
MS. WALKER: (Unintelligible) I’ll get in trouble.
THE COURT: Are you sure?
MS. WALKER: Yeah.
The COURT: All right. Thanks for coming back. Thanks for
allowing me to talk with you. I’ll see you next week. You stay until
the end of the calendar.
The court then asked those present to applaud Walker, presumably
because she had been clean and sober for 55 days.
Walker cites State v. Lemke,14 in which the same superior court judge did
not appear reasonably impartial toward a participant in drug court. During those
proceedings, the judge called Lemke a “fucking addict” and “just a criminal.”15
14 7 Wash. App. 2d 23, 27-28, 434 P.3d 551 (2018).
15 Lemke, 7 Wash. App. 2d at 25, 27.
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No. 77707-6-1 /13
He told Lemke, “You can’t even give me a clean date you’re so fucked up”16 and
said, “So not only is he an addict, he’s also a liar and thief.”17 After Lemke’s
attorney requested a DOSA, the judge said, “I’m not giving him a residential
DOSA.”18
The judge’s treatment of Walker does not compare to his treatment of
Lemke. He did not call Walker a thief or a criminal. Instead, he pushed her to
explore the cause of her drug use and told her she had the capacity to address
her addiction. He considered the results of the DOC’s screening and the
statements by the parties and their witnesses. We conclude that Walker fails to
establish that a reasonable person might question the impartiality of the superior
court judge. So she does not establish manifest constitutional error entitling her
to raise this issue for the first time on appeal.
Legal Financial Obligations
Next, Walker asserts that the trial court erred in imposing four LFOs
because the 2018 amendments to LFO-related statutes enacted under House Bill
1783 retroactively apply to her. We agree that three of the four fees she
challenges must be stricken.
A. Mandato,y Victim Penalty Assessment
Walker challenges the court’s imposition of the $500 victim penalty
assessment. RCW 7.68.035(1)(a) requires that a trial court impose a penalty
16 Lemke, 7 Wash. App. 2d at 26.
17 Lemke, 7 Wash. App. 2d at 26.
18 Lemke, 7 Wash. App. 2d at 26.
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No. 77707-6-1 / 14
assessment on “any person . . . found guilty in any superior court of having
committed a crime,” except for crimes identified in RCW 7.68.035(2). These
assessments fund programs for victims and witnesses.19 The statutory
amendments passed in 2018 retain the fee as mandatory.2° The court did not err
in imposing the victim penalty assessment.
B. Discretionary Fees
Walker challenges the $200 filing fee, the $100 DNA fee, and the $900
drug court fee on the grounds that the legislature’s 2018 modifications to LFO
statutes apply to her sentence.
In 2015, the Washington Supreme Court held that under RCW
10.01.160(3), sentencing judges must “make an individualized inquiry into the
defendant’s current and future ability to pay before the court imposes LFOs.”21
Subsequently, in 2018, the legislature passed House Bill 1783 which amended
statutes governing the imposition of discretionary LFOs. House Bill 1783,
effective June 7, 2018, amended former RCW 36.18.020(2)(h) (2015) to prohibit
trial courts from imposing the $200 court filing fee on indigent defendants.22 It
also eliminated the mandatory $100 DNA collection fee where “the state has
previously collected the offender’s DNA as a result of a prior conviction.”23 It did
19 RCW 7.68.035(4).
20 LAws OF 2018, ch. 269 § 19; State v. Catling, 193 Wash. 2d 252, 259-60,
438 P.3d 1174 (2019) (noting that House Bill 1783 “specifically and repeatedly”
identifies the assessment fee as mandatory).
21 State v. Blazina, 182 Wash. 2d 827, 839, 344 P.3d 680 (2015).
22 LAWS OF 2018, ch. 269, § 6(3).
23 RCW 43.43.7541.
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No. 77707-6-1 /15
not directly affect RCW 2.30.030(5) which confers on the superior court the
discretion to reduce or waive fees for therapeutic courts “[u]pon a showing of
indigence under RCW 10.101.010.” But it amended RCW 10.01.160(3) to
prohibit sentencing courts from imposing discretionary costs on indigent
defendants.24 Under Ramirez, these amendments apply prospectively to Walker
because her direct appeal was pending at the time of the amendment’s
enactment.25
The superior court did not make an inquiry into Walker’s ability to pay
before it imposed the LFO5 at issue. And Walker demonstrated her indigency for
this appeal.26 Walker was convicted of several felonies in 2014, and the
prosecution’s record of her criminal history stated that the State had previously
collected her DNA. And the judgment and sentence in this case states that DNA
testing was not required because the Washington State Patrol Crime Laboratory
already had a sample.27
24 LAws OF 2018, ch. 269, § 17(2)(h).
25 Ramirez, 191 Wash. 2d at 747. The State’s response focuses largely on
the cost of drug court and declares that “[i]f fees could not be imposed against
indigent participants, they could rarely be imposed at all [in drug court].” This
argument ignores Ramirez and Blazina. As the court in Blazina noted, ‘[T]he
State cannot collect money from defendants who cannot pay.” Blazina, 182
Wash. 2d at 837.
26 Ramirez similarly demonstrated his indigence at the appeal stage.
Ramirez, 191 Wash. 2d at 747.
27 The State asserts, “In the present case, the record does not show
whether or not the defendant previously submitted a DNA sample.” But it fails to
address the documents in the record asserting that she did previously submit a
sample. And, if these are insufficient, it fails to identify what, exactly, is sufficient
to show DNA was previously collected.
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No. 77707-6-1 / 16
The State concedes that the $200 filing fee should be stricken. We agree
and remand for that purpose. Because the record shows that the State has
already collected Walker’s DNA, we also remand for the superior court to strike
the $100 DNA collection fee.28 Finally, because the drug court fee is
discretionary and the 2018 amendment to RCW 10.01.160(3) prohibits
sentencing courts from imposing discretionary costs on indigent defendants, we
remand for the superior court to strike the $900 drug court fee.
Findings of Fact and Conclusions of Law
Last, Walker challenges, under CrR 6.1(d), the adequacy of the trial
court’s findings of fact and conclusions of law entered with her convictions. She
claims they were insufficient because ‘they reiterated the charging document and
added no information about the factual basis for each crime.” Walker does not
challenge the sufficiency of the evidence to support her convictions. She does
not claim that the findings fail to address any element of a crime for which the
court convicted her. Nor does she claim that the trial court failed to find any
element of any crime proved beyond a reasonable doubt.
In response, the State contends that Walker cannot raise this issue
because she did not object to the adequacy of the findings and conclusions in the
trial court. We agree.
28 The State cites to State v. Thibodeaux, 6 Wash. App. 2d 223, 230, 430
P.3d 700 (2018), review denied, 192 Wash. 2d 1029 (2019). It states that here, as
in Thibodeaux, the record is silent as to whether Walker’s DNA was collected.
But the record here is not silent.
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No. 77707-6-1 / 17
As we have noted, a party generally may not raise an issue for the first
time on appeal. Unlike Walker’s claim of judicial bias, this claim does not raise
any constitutional issue. Nor does she assert that any other exception to the
general rule applies. Indeed, Walker does not respond in her reply brief to the
State’s argument. We exercise our discretion under RAP 2.5 and decline to
consider the issue.
CONCLUSION
We affirm in part and remand for the superior court to strike the criminal
filing fee, the DNA collection fee, and the drug court fee from the judgment and
sentence.
WE CONCUR:
(jkkWh,(~.
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