State of Washington v. Joseph Dean Byrd ( 2015 )

FILED
MARCH 5, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division IIJ
COURT OF APPEALS, DIVISION III, STATE OF
WASHINGTON
STATE OF WASHINGTON, ) No. 31540-1-111
)
Respondent, ) ORDER GRANTING
) MOTION FOR
v. ) RECONSIDERATION AND
) WITHDRAWING OPINION
JOSEPH DEAN BYRD, )
)
Appellant )
The court has considered appellant's pro se motion for reconsideration and is of
the opinion the motion should be granted. Therefore,
IT IS ORDERED the motion for reconsideration of this court's decision of
November 25,2014, is hereby granted.
IT IS FURTHER ORDERED the opinion filed November 25, 2014, is hereby
withdrawn and a new opinion will be filed this day.
DATED: March 5, 2015
PANEL: Judges Lawrence-Berrey, Brown, and Korsmo
FOR THE COURT:
FILED
MARCH 5, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31540-1-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOSEPH DEAN BYRD, )
)
Appellant. )
LAWRENC&BERREY, J. Joseph Dean Byrd appeals the legal financial
obligations (LFOs) imposed by the trial court during sentencing. He contends the trial
court erred by finding he has the ability or likely future ability to pay these obligations. In
a statement of additional grounds for review (SAG), he contends that his convictions for
second degree robbery and third degree theft violate double jeopardy. In a supplemental
SAG, he contends he received mUltiple punishments for the same crime, trial counsel was
ineffective for failing to request a lesser included jury instruction, and insufficiency of the
evidence. Finding no error, we affirm.
No.31540-I-III
State v. Byrd
FACTS
Ajury found Mr. Byrd guilty of second degree robbery and third degree theft. At
sentencing, the trial court imposed the following legal financial obligations requested by
the State: $500 victim assessment, $200 criminal filing fee, and $1,500 court appointed
attorney recoupment fee. Boilerplate language within the judgment and sentence stated:
The court has considered the total amount owing, the defendant's present
and future ability to pay legal financial obligations, including the
defendant's financial resources and the likelihood that the defendant's
status will change.
Clerk's Papers (CP) at 24.
At sentencing, neither party made any presentation addressing Mr. Byrd's ability to
pay legal financial obligations. Mr. Byrd did not object to the costs imposed or to the
boilerplate language in the judgment and sentence related to his ability to pay. The court
ordered LFOs as follows:
The total financial obligation is $2,200. It will bear interest by law
from now until it is paid. Mr. Byrd's inmate account will be subject to
withdrawals on a percentage basis. After his release he's to make payments
as directed by [the Department of Corrections], and after his supervision as
directed by the clerk.
Report of Proceedings (Mar. 25, 2013) at 18.
2
No. 31540-I-III
State v. Byrd
Pursuant to Mr. Byrd's request, the court dismissed the third degree theft, finding
it had merged into the second degree robbery conviction. The court imposed a 50-month
standard range sentence.
ANALYSIS
For the first time on appeal, Mr. Byrd contends that the trial court erred in finding
that he had the ability to pay legal financial obligations without conducting any inquiry
into his financial circumstances. Accordingly, he asks us to strike the directive to pay the
LFOs.
Whenever a person is convicted in superior court, the court may order the payment
oflegal financial obligations as part of the sentence. RCW 9.94A.760(1). Courts may
impose legal financial obligations if a defendant has or will have the ability to pay. State
v. Baldwin, 63 Wash. App. 303, 312,818 P.2d 1116 (1991). Before making such a finding,
the trial court must "[take] into account the financial resources of the defendant and the
nature of the burden" imposed by the LFOs. Id. This court reviews a trial court's
determination of an offender's financial resources and ability to pay for clear error. Id.
Two of the LFOs at issue here are mandatory. The $500 victim assessment is
required by RCW 7.68.035, irrespective of ability to pay. State v. Curry, 62 Wn. App.
676,681,814 P.2d 1252 (1991), aff'd, 118 Wn.2d 911,829 P.2d 166 (1992). And the
3
No. 31540-1-II1
State v. Byrd
$200 criminal filing fee is required by RCW 36.l8.020(2)(h). Because these LFOs are
mandatory, they do not require the trial court to consider Mr. Byrd's ability to pay.
The only discretionary LFO was the $1,500 appointed counsel recoupment fee.
However, Mr. Byrd did not object at sentencing to the finding of his current or likely
future ability to pay. Until our Supreme Court decides otherwise, the rule established that
a defendant may not challenge a determination regarding his or her ability to pay LFOs
for the first time on appeal. State v. Blazina, 174 Wash. App. 906, 911, 301 P.3d 492,
review granted, 178 Wn.2d 1010,311 P.3d 27 (2013); State v. Calvin, 176 Wash. App. 1,
302 P.3d 509 (2013), petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013); State
v. Kuster, 175 Wash. App. 420, 425, 306 P.3d 1022 (2013). Consistent with these decisions
we decline to allow Mr. Byrd to challenge that finding for the first time on appeaL See
also RAP 2.5(a).
We also agree with the State that the issue is not ripe for review. Mr. Byrd may
petition the court at any time for remission or modification of the payments on the basis
of manifest hardship. RCW 10.01.160(4); Baldwin, 63 Wash. App. at 310-11. The initial
imposition of court costs at sentencing is predicated on the determination that the
defendant either has or will have the ability to pay. RCW 10.01.160(3). Because this
determination is somewhat "speculative," the time to examine a defendant's ability to pay
4
No. 31540-1-III
State v. Byrd
is when the government seeks to collect the obligation. State v. Smits, 152 Wash. App. 514,
523-24,216 P.3d 1097 (2009). Mr. Byrd may challenge the trial court's imposition of
LFOs when the government seeks to collect them.
In his pro se statement of additional grounds for review (SAG), Mr. Byrd contends
that his judgment and sentence is invalid due to a double jeopardy violation. Specifically,
he contends that the convictions for second degree robbery and third degree theft violate
double jeopardy and, therefore, the court erred by imposing "57 Months for robbery in the
second degree plus 364 days in theft in the third degree." SAG at 5. "We review alleged
double jeopardy violations de novo." State v. Lust, 174 Wash. App. 887, 890, 300 P.3d 846
(2013).
The state and federal double jeopardy clauses protect a defendant from being
punished multiple times for the same offense. State v. Adel, 136 Wash. 2d 629, 632, 965
P.2d 1072 (1998). "Where a defendant's act supports charges under two criminal
statutes, a court weighing a double jeopardy challenge must determine whether, in light of
legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint
o/Orange, 152 Wash. 2d 795, 815, 100 P.3d 291 (2004).
5
No. 31540-1-II1
State v. Byrd
Mr. Byrd misunderstands his sentence. The trial court dismissed the third degree
theft count and imposed a mid-range standard range sentence of 50 months for the second
degree robbery conviction. CP at 25. Thus, no double jeopardy issue arises .
. Finally, Mr. Byrd raises three additional issues in a pro se supplemental SAG.
First, he contends that he improperly received "multiple punishments" for the theft and
robbery convictions because they involved the same criminal conduct. Suppl. SAG at
2-3. Our federal and state constitutions prohibit being punished twice for the same crime.
U.S. CONST. amend. V; CONST. art. I, § 9; State v. Freeman, 153 Wash. 2d 765, 770-71,
108 P.3d 753 (2005). Mr. Byrd's argument overlooks the fact that the trial court
dismissed his third degree theft conviction at sentencing. The trial court sentenced him
solely on the robbery conviction. Thus, his claim fails.
Mr. Byrd next argues that trial counsel was ineffective for failing "to instruct the
jury on a lesser included offense, based on multiple charges arising from the same
criminal conduct." Suppl. SAG at 5-6. He argues that he was "charged for a crime, that
he did not premeditate" and that defense counsel's failure to request a lesser included
instruction violated his right to due process. Suppl. SAG at 5.
We review de novo a claim that counsel ineffectively represented the defendant.
State v. Thach, 126 Wash. App. 297, 319, 106 P.3d 782 (2005). To establish ineffective
6
No.31540-I-II1
State v. Byrd
assistance of counsel, Mr. Byrd must show that (I) his attorney's representation fell
below an objective standard of reasonableness, and (2) resulted in prejudice. State v.
McFarland, 127 Wn.2d 322,334-35,899 P.2d 1251 (1995). Here, we need only address
the first prong.
A defendant charged with an offense has an unqualified right to have the jury pass
on a lesser included offense if there is '" even the slightest evidence'" that he may have
committed only that offense. State v. Parker, 102 Wash. 2d 161, 163-64,683 P.2d 189
(1984) (quoting State v. Young, 22 Wash. 273, 276-77, 60 P. 650 (1900)). We apply a
two-prong test to determine when a lesser included offense instruction must be given.
First, each of the elements of the lesser offense must be a necessary element of the greater
offense (legal prong) and, second, the evidence must support an inference that only the
lesser offense was committed (factual prong). State v. Workman, 90 Wash. 2d 443, 447-48,
584 P.2d 382 (1978).
Our analysis is compromised by Mr. Byrd's failure to identifY the crime he
believes should have been included in a lesser included instruction. The trial court
properly instructed the jury on the elements of third degree theft, a lesser included offense
of second degree robbery. This allowed Mr. Byrd to assert his theory that he simply
committed theft, not robbery. Mr. Byrd fails to establish that defense counsel's
7
No. 3 I 540-I-III
State v. Byrd
perfonnance was deficient.
Third, Mr. Byrd contends that the State failed "to prove the intent of the crime of
Robbery in the Second degree, and Theft in the Third degree." Suppl. SAG at 6. Beyond
that general assertion, he fails to cite to the record or point to any specific deficiencies in
the evidence. Under RAP 10.1 O(c), we are not required to review a SAG if it fails to
adequately describe the nature and occurrence of any alleged errors.
Nevertheless, to the extent we are able to address his argument, it fails. Theft
requires proof that a defendant wrongfully obtained property of another "with intent to
deprive him or her of such property or services." RCW 9A.56.020(1)(a). Robbery also
includes the nonstatutory element of intent to steal, which our Supreme Court has held is
the equivalent of specific intent to deprive the victim of his property. In re Pers.
Restraint ofLavery, 154 Wn.2d 249,255-56, 111 PJd 837 (2005). Here, the record
shows that a store security officer watched Mr. Byrd take two cell phones from store
shelves and hide them in his sweatshirt pocket. Mr. Byrd then left the store without
paying for the merchandise. A jury could reasonably infer that Mr. Byrd intended to
deprive the store of its property. Viewed in the light most favorable to the State, the
evidence sufficiently establishes the intent to steal.
8
No. 31540-1-II1
State v. Byrd
We affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
Brown, A.C,J.
9