State Of Washington v. Lamar Jefferies ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
June 25, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50636-0-II
Respondent, UNPUBLISHED OPINION
v.
LAMAR HOWARD JEFFRIES,
Appellant.
GLASGOW, J. — Lamar Howard Jeffries got into an argument with a Pierce Transit bus
driver, and the transit communications center requested law enforcement assistance. Jeffries
then argued with the responding officer, and eventually Jeffries scuffled with the officer, bit the
officer’s arm, and grabbed onto his gun belt. The State charged Jeffries with various crimes as a
result if this incident. Jeffries failed to appear in court for a required pretrial conference while he
was out on bail.
Jeffries now appeals his convictions for obstruction of a law enforcement officer and bail
jumping.1 He also appeals certain legal financial obligations imposed as part of his sentence.
1
Jeffries later pleaded guilty to a second bail jumping charge, although he does not appeal the
validity of his second bail jumping conviction.
No. 50636-0-II
Jeffries argues that the bail jumping to-convict jury instruction omitted an essential
element of the offense. In addition, Jeffries argues that the State presented insufficient evidence
to convict him of bail jumping and that he received ineffective assistance of counsel affecting
both convictions. Finally, Jeffries argues that the sentencing court erred when it ordered him to
pay certain legal financial obligations. We affirm Jeffries’s convictions for bail jumping and
obstruction, but we remand for the trial court to strike the challenged legal financial obligations
and associated interest from his judgment and sentence.
FACTS
On Thanksgiving evening 2015, a Pierce Transit bus driver parked his bus while on a
break. He closed and secured the doors before he left. When the driver returned, he noticed the
bus doors ajar, multiple plastic bags inside, and Jeffries waiting outside the bus. He asked
Jeffries not to board parked and unoccupied buses in the future. Jeffries responded with vulgar
language and hand gestures. The driver then informed Jeffries that it was the end of his shift, he
was taking the bus back to the garage, and that he was not taking passengers at that time.
As Jeffries was leaving, he kicked the bus door, so the driver reported the disturbance to
the transit communications center, which notified the sheriff’s department. The communications
center told the bus driver to return the bus to the garage to avoid further safety concerns.
Pierce County Sheriff’s Deputy Michael Csapo responded and contacted Jeffries. Jeffries
denied cursing at the driver or kicking the bus. Csapo initially advised Jeffries that he was not
under arrest, but he proceeded to write Jeffries a civil citation excluding him from Pierce Transit
for a period of time. Jeffries was initially peaceful, but he appeared to be heavily intoxicated.
When another bus arrived, he started yelling and cursing at the bus driver. Csapo ordered
2
No. 50636-0-II
Jeffries to stop approaching the bus, but Jeffries ignored him. Csapo placed Jeffries under arrest
for unlawful transit conduct and put him, handcuffed, in the back of his car. Even then, Csapo
told Jeffries he planned to issue the civil citation and let him go.
Csapo explained to Jeffries the citation and his appeal rights. But when Csapo started the
process of releasing Jeffries from the handcuffs, Jeffries refused to cooperate with instructions to
put his free hand on top of his head to ensure the officer’s safety. According to Csapo, Jeffries
then struggled, grabbed onto Csapo’s gun belt, and bit Csapo in the arm.
As a result of this incident, the State originally charged Jeffries with one count of third
degree assault, one count of unlawful transit conduct, and one count of resisting arrest. The trial
court released Jeffries on bail with certain conditions, including that he not violate the law, that
he maintain contact with is defense attorney, that he not possess weapons or firearms, that he not
consume or possess alcohol or non-prescription drugs, and that he not have hostile contact with
law enforcement.
The trial court also entered an order, which Jeffries signed, requiring Jeffries to be
“present and report to” courtroom 270 for a pretrial conference on January 12, 2016, at 1:00 p.m.
On January 12, the court polled the gallery at 3:10 p.m., and a prosecutor checked the courtroom
and hallway, but Jeffries was not present. The trial court entered an order authorizing a bench
warrant because it found Jefferies failed to appear as required.
The State then amended the information to add a charge of bail jumping. The amended
information also added a charge of obstructing a law enforcement officer and dropped the prior
charges of unlawful transit conduct and resisting arrest.
3
No. 50636-0-II
At a subsequent pretrial hearing, Jeffries informed the trial court (with defense counsel
present) that he had been diagnosed with post-traumatic stress disorder (PTSD). Jeffries
requested a competency evaluation under chapter 10.77 RCW. The trial court considered
whether to hold a hearing under chapter 10.77 RCW, but denied the motion for evaluation. The
trial court found Jeffries competent to stand trial. The trial court advised Jeffries that, to the
extent he wanted to pursue a diminished capacity defense, he should discuss that with defense
counsel. The court noted, however, that if Jeffries was under the influence of drugs or alcohol,
“you probably don’t get a diminished capacity instruction.” 1 Verbatim Report of Proceedings
(VRP) at 9.
At trial, Csapo testified that he had been assigned to the Pierce Transit patrol division for
the past six years, and that the division’s primary focus was the bus system in and around Pierce
County, with an emphasis on the safety of employees and passengers. He testified: “When we
first took over the contract in 2009 it was chaotic. There was a lot of crime, a lot of strong-arm
robberies, a lot of assaults on the buses. We came in and took over, working full-time focusing
on the bus system.” 3 VRP at 78. Csapo explained that the strategy worked, they were able to
“clean up the [bus] system, and now it functions fairly well.” 3 VRP at 79.
The prosecutor asked whether there was a “[d]ifferent kinds of clientele for different
types of routes?” Csapo replied:
We don’t have the normal, like in Seattle, you have the people that take the bus to
and from work. We don’t really have that. . . . [W]e have the infirm[], we have the
mentally ill. We have people that have lost their driver’s privileges for whatever
reason, . . . and we have the elderly. That’s primarily our clientele that use the bus
system.
4
No. 50636-0-II
3 VRP at 79. The prosecutor asked whether the clientele he mentioned were vulnerable on the
buses, and Caspo replied: “Well, they’re targeted, to be honest, because they’re people that can’t
defend themselves or they’re just easy prey for people that look for victims.” 3 VRP at 80.
Csapo discussed the division’s approach to policing Pierce Transit, which he termed “the
theory of broken windows of law enforcement,” explaining that “[i]f you fix the little things, the
larger events are not allowed to develop and percolate.” 3 VRP at 80. He testified that civil
infractions excluding people from the bus system for a period of time were their primary way of
getting people to change their behavior when they were not complying with transit rules. The
total number of civil infractions had declined over recent years.
All of this testimony was elicited as background before Csapo discussed the specific
incident involving Jeffries. Defense counsel did not object to any of this background questioning
or testimony.
Regarding the charge of bail jumping, the trial court admitted into evidence the order
establishing Jeffries’s conditions of release. Defense counsel did not object to the admission of
this exhibit or seek redaction. Pierce County Deputy Prosecuting Attorney Lloyd Oaks testified
that he polled the gallery at 3:10 p.m. on January 12, when Jeffries had been ordered to appear.
Oaks testified it is his practice to contact the parties in the gallery and check the hallways to
confirm whether someone has appeared. Oaks testified Jeffries did not appear on January 12.
Defense counsel did not argue diminished capacity at trial.
The jury found Jeffries guilty of obstructing a law enforcement officer and bail jumping.
The jury could not reach a verdict on the count of third degree assault. The trial court released
5
No. 50636-0-II
Jeffries on bail and ordered him to appear for sentencing on June 3. Jeffries signed another order
establishing conditions of release and requiring him to appear on June 3.
On June 3, Jeffries failed to appear for sentencing as required. The court again
authorized a bench warrant. After the police arrested Jeffries, the State chose to retry him on the
count of third degree assault and added another count of bail jumping for his failure to appear at
the sentencing hearing.
During his second round of proceedings, Jeffries again indicated that he wanted to pursue
a diminished capacity defense. His newly appointed defense counsel advised the trial court that
he did not believe there was “a factual or legal basis to” assert a diminished capacity defense
Jeffries said that he wanted to proceed pro se in order to assert diminished capacity
Apparently in order to determine whether Jeffries could competently waive his right to
counsel, the trial court ordered a competency evaluation. Julia McLawsen, Ph.D., completed a
forensic psychological report. McLawsen opined that Jeffries was competent. The trial court
agreed.
Jeffries maintained that he wished to pursue his diminished capacity defense pro se.
Defense counsel again advised the trial court that he had counseled Jeffries, “[b]ased upon the
general rules of ethics and what I believe I lack in regard to presenting that [diminished capacity]
defense, I have expressed to him that I could not pursue that.” VRP (July 6, 2017) at 2. Because
McLawsen concluded that Jeffries was competent, and because he unequivocally asserted that he
wished to proceed pro se, the trial court granted Jeffries’s motion to proceed pro se with defense
counsel on standby.
6
No. 50636-0-II
Jeffries ultimately pleaded guilty to the additional count of bail jumping, and the State
dropped the third degree assault charge. The trial court found Jeffries was indigent. The trial
court imposed a $200 criminal filing fee and a $100 DNA collection fee.
Jeffries appeals his convictions and sentence on the first count of bail jumping and
obstruction of a law enforcement officer.
ANALYSIS
I. TO-CONVICT JURY INSTRUCTION
At trial, the jury was presented with the following instruction on bail jumping:
[T]o convict the defendant of the crime of bail jumping, each of the following
elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about January 12, 2016, the defendant failed to appear before a
court;
(2) That the defendant was charged with Assault in the Third Degree;
(3) That the defendant had been released by court order or admitted to bail with
knowledge of the requirement of a subsequent personal appearance before that
court.
Clerk’s Papers (CP) at 30. This instruction is modeled after 11A Washington Practice:
Washington Pattern Jury Instructions: Criminal 120.41 (4th ed. 2016) (WPIC). Jeffries argues
that this instruction relieved the State of its burden to prove the essential element that he
knowingly failed to appear “as required,” thereby violating his due process rights. Br. of
Appellant at 10-13. We disagree.
As an initial matter, the State argues Jeffries failed to preserve the alleged error because
he failed to object at trial. However, a party may raise for the first time on appeal a manifest
error affecting a constitutional right. RAP 2.5(a)(3). A to-convict instruction “carries with it a
special weight because the jury treats the instruction as a ‘yardstick’ by which to measure a
defendant's guilt or innocence.” State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). “The issue
7
No. 50636-0-II
of omission of an element from that instruction is of sufficient constitutional magnitude to
warrant review when raised for the first time on appeal.” Id.We review the sufficiency of a to-convict instruction de novo. State v. Williams, 162
Wn.2d 177, 182, 170 P.3d 30 (2007). To convict a defendant of bail jumping under RCW
9A.76.170(1), the State must prove beyond a reasonable doubt that the defendant (1) “was held
for, charged with, or convicted of a particular crime;” (2) “was released by court order or
admitted to bail with the requirement of a subsequent personal appearance;” and (3) “knowingly
failed to appear as required.” Williams, 162 Wn.2d at 183-84.
“Due process requires the trial court to accurately instruct the jury on every element
required to convict a defendant of the crimes alleged.” State v. Tyler, 191 Wn.2d 205, 216, 422
P.3d 436 (2018). In the context of challenges to other types of instructions, our Supreme Court
has recognized that a trial court can consider the context of the jury instructions as a whole.
State v. Johnson, 180 Wn.2d 295, 306, 325 P.3d 135 (2014). But where a to-convict instruction
is challenged, we must not look to other jury instructions to supplement a defective to-convict
instruction. State v. Sibert, 168 Wn.2d 306, 311, 230 P.3d 142 (2010).
The State argues that State v. Hart governs this appeal. 195 Wn. App. 449, 455-56, 381
P.3d 142 (2016), review denied, 187 Wn.2d 1011 (2017), abrogated on other grounds by State v.
Burns, --- Wn.2d ---, 438 P.3d 1183 (2019). Hart argued, as Jeffries does, that his bail jumping
to-convict instruction relieved the State of its burden to prove the element that he had failed to
appear at a court hearing “as required.” Id. We disagreed, reasoning that
the trial court’s bail jumping to-convict instruction, which mirrors the to-convict
instruction in 11A Washington Practice: Washington Pattern Jury Instructions:
Criminal 120.41 at 517 (3d ed. 2008), required the State to prove beyond a
reasonable doubt that Hart had been released by court order or admitted to bail with
8
No. 50636-0-II
knowledge of the requirement of a subsequent personal appearance before that
court.
195 Wn. App. at 456 (record citation omitted). We concluded, therefore, that “the trial court’s
to-convict instruction included the element of a required subsequent appearance.” Id. As a
result, the instruction was proper. Id.
We decline to depart from Hart, and we apply its reasoning to this case. As in Hart, the
trial court here modeled the to-convict instruction on WPIC 120.41. Jeffries’s to-convict
instruction required his “knowledge of the requirement of a subsequent personal appearance
before that court.” CP at 30. Here, as in Hart, the to-convict instruction was not misleading and
it properly informed the jury of all essential elements of bail jumping, including that Jeffries was
required to appear but did not.
To the extent that Jeffries also argues that it is inherently improper not to recite precise
statutory language in a jury instruction, we disagree. An instruction that uses statutory language
is “appropriate only if the statute is applicable, reasonably clear, and not misleading.” Bell v.
State, 147 Wn.2d 166, 177, 52 P.3d 503 (2002); see also State v. Schierman, 192 Wn.2d 577,
651, 415 P.3d 106 (2018) (“A jury instruction is proper if it permits each party to argue its theory
of the case, is not misleading, and properly informs the jury of the applicable law.”). Omitting
the words—“as required”—from the element of the to-convict jury instruction asking whether
“the defendant failed to appear before a court” did not render the instruction legally erroneous, so
long as the to-convict instruction conveyed the requirement in another way. Hart, 195 Wn. App.
at 456.
9
No. 50636-0-II
We hold the challenged to-convict instruction did not relieve the State of its burden to
prove all of the essential elements of bail jumping and, therefore, it did not violate Jeffries’s due
process rights.
II. SUFFICIENCY OF THE EVIDENCE
Jeffries argues that the State did not present sufficient evidence to convict him of bail
jumping because there was no evidence that he was absent from the courtroom at the specific
time that he had been ordered to appear. We disagree.
The standard for evaluating the sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. Hart, 195 Wn. App. at 456. All reasonable inferences from the
evidence must be drawn in favor of the State. Id. Circumstantial evidence and direct evidence
are equally reliable. Id. We defer to the jury’s resolution of conflicting testimony, evaluation of
witness credibility, and decisions regarding the persuasiveness of evidence. Id.
Jeffries relies on State v. Coleman, 155 Wn. App. 951, 963-64, 231 P.3d 212 (2010), to
argue that the State must prove beyond a reasonable doubt that he was absent at the specific time
at which he was notified the hearing would occur. But Coleman presented different facts, and
this case is more like Hart, where we found sufficient evidence of bail jumping.
In Coleman, the trial court polled the gallery for the defendant at 8:30 a.m., before 9:00
when he was actually ordered to appear. 155 Wn. App. at 963-64. Division One of our court
concluded that the State presented insufficient evidence to prove bail jumping in that case. In
contrast, in Hart, we held that the bail jumping statute does not require the State to present
evidence that a defendant was not in the court precisely at the specified time he was ordered to
10
No. 50636-0-II
appear. 195 Wn. App. at 457-58. We concluded that the bail jumping statute is satisfied if (1)
the trial court polls for the defendant after the specified time he was ordered to appear, and (2)
the defendant is not present in the courtroom at that time. See id.
Here, the State presented documentary evidence, including a number of exhibits
establishing that Jeffries was directed to appear at 1:00 p.m. on January 12 in courtroom 270. He
signed the order directing him to appear. And the State presented testimony that the prosecutor
polled for the defendant in the courtroom and in the hallways after 1:00 p.m. Any rational trier
of fact could have viewed this evidence and found that the elements of bail jumping had been
proved beyond a reasonable doubt.
Jeffries finally argues that there was no evidence that the poll was taken in room 270,
where he was ordered to appear. But the prosecutor testified that he was assigned to that
courtroom.
After viewing the evidence in the light most favorable to the State, we conclude that the
State presented sufficient evidence to convict Jeffries of bail jumping.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Jeffries argues he received ineffective assistance of counsel. We disagree.
Criminal defendants have a constitutional right to effective assistance of counsel. U.S.
CONST., amends. VI, XIV; WASH. CONST., art. I, §§ 3, 22. To prove ineffective assistance, the
defendant must show that (1) counsel’s performance was so deficient that it fell below an
objective standard of reasonableness and (2) the deficient performance prejudiced him to the
extent that there is a reasonable probability the deficient performance deprived him of a fair trial.
State v. Humphries, 181 Wn.2d 708, 719, 336 P.3d 1121 (2014) (applying Strickland v.
11
No. 50636-0-II
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Failure to establish
either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.
We consider the totality of the evidence on the record. Strickland, 466 U.S. at 695; State
v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001).
Judicial scrutiny of counsel’s performance must be highly deferential, and a fair
assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.
Strickland, 466 U.S. at 669. The defendant faces a strong presumption that counsel’s
representation falls within the broad range of reasonably effective assistance. Strickland, 466
U.S. at 689; State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Legitimate trial strategy or
tactics cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Kyllo,
166 Wn.2d 856, 863, 215 P.3d 177 (2009).
A. Failure to Object to Particular Portions of Csapo’s Testimony
Jeffries first argues he received ineffective assistance because counsel failed to object to
certain portions of Csapo’s testimony that he claims were inadmissible and highly prejudicial.
Jeffries argues that Csapo’s testimony concerning Pierce Transit’s vulnerable clientele and about
the sheriff’s department’s strategy of “broken windows” policing to protect vulnerable bus riders
from being “preyed” upon was irrelevant and inadmissible. 3 VRP at 80. He also contends that
this testimony encouraged the jury to convict Jeffries in order to deter future lawbreaking rather
than based on guilt. We disagree.
“The decision to object, or to refrain from objecting even if testimony is not admissible,
is a tactical decision not to highlight the evidence to the jury. It is [generally] not a basis for
12
No. 50636-0-II
finding counsel ineffective.” State v. Kloepper, 179 Wn. App. 343, 355, 317 P.3d 1088 (2014).
To prove the failure to object rendered counsel ineffective, the defendant must show that not
objecting fell below prevailing professional norms, the proposed objection would likely have
been sustained, and the result of the trial would have been different if the evidence had not been
admitted. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004). To prevail on
this issue, the defendant must rebut the presumption that counsel’s failure to object can be
characterized as legitimate trial strategy or tactics. Id. Where the defendant cannot establish on
the record the reasons for counsel’s decision, the defendant has not met their burden and the
appropriate avenue for presenting additional evidence is through a personal restraint petition.
State v. Linville, 191 Wn.2d 513, 525, 423 P.3d 842 (2018).
Jeffries points to State v. Ramos, 164 Wn. App. 327, 338, 263 P.3d 1268 (2011), which
relied on United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 1991). In Solivan, the Sixth
Circuit explained it is improper for a prosecutor to “urge jurors to convict a criminal defendant in
order to protect community values, preserve civil order, or deter future lawbreaking” because it
risks a conviction “for reasons wholly irrelevant to [the defendant’s] own guilt or innocence.”
Solivan, 937 F.2d at 1153.
Jeffries’s reliance on Ramos and Solivan is misplaced. Csapo’s testimony provided
background establishing that he was performing his official duties, which was relevant to the
obstruction charge. Under RCW 9A.76.020(1), “[a] person is guilty of obstructing a law
enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement
officer in the discharge of his or her official powers or duties.” Csapo’s testimony established
that he was discharging his “official powers or duties” when he responded to the call from Pierce
13
No. 50636-0-II
Transit reporting a disturbance. During trial, Csapo testified that he had been assigned to the
Pierce Transit patrol division for the past six years, and the division’s primary focus was the bus
system in and around Pierce County, with an emphasis on the safety of employees and
passengers. Csapo’s testimony was relevant to show the sheriff department’s approach to
handling reported disturbances on Pierce Transit buses and why Csapo was inclined to issue
Jeffries a citation.
Under these circumstances, it was a legitimate trial tactic to decline to object to this
testimony. An objection based on Ramos and Solivan would not have been sustained, and
counsel likely legitimately concluded that it was best not to focus the jury’s attention on this
testimony. Jeffries’s ineffective assistance of counsel claim on this ground fails.
B. Failure to Object to Admission of the Order Establishing Jeffries’s Conditions of Release
Jeffries argues he received ineffective assistance of counsel because his counsel failed to
object to the admission of the order establishing his conditions of release or insist on redaction of
some conditions. We disagree.
At trial, the State presented an order that established Jeffries’s conditions of release, and
the trial court admitted the order without objection. The order provided, among other things, that
Jeffries “shall not possess weapons or firearms,” “shall not consume or possess alcohol or non-
prescription drugs,” and shall have “[n]o hostile contact with law enforcement.” Ex. 6. Jeffries
argues counsel should have objected or at least sought redaction of this exhibit because these
conditions were inadmissible under ER 401 and 402 because they were irrelevant to the crimes
charged. He also argues that the probative value of the order was substantially outweighed by
the danger of unfair prejudice under ER 403, and the conditions of release specified in the order
14
No. 50636-0-II
encouraged the jury to find that Jeffries was violent, had a drinking problem, and was hostile
toward law enforcement.
However, the State offered this exhibit to show that the trial court released Jeffries while
requiring that he appear personally in court on a certain date, an essential element of bail
jumping. The order also reflected that Jeffries had signed it. For those reasons, the order was
relevant under ER 401 and 402. The probative value of the order for purposes of proving
elements of bail jumping also outweighed any prejudicial effect under ER 403.
To the extent Jeffries argues that counsel was deficient for his failure to seek redaction of
specific conditions of release, this argument also fails. The order includes several conditions as
standard options for the trial court to adopt by checking a box, including the condition requiring
the defendant not to possess firearms and not to consume alcohol while out on bail. The
condition of release requiring Jeffries to avoid altercations with law enforcement is not
surprising given the circumstances surrounding his crime. And there may have been good
reasons for counsel to avoid redaction, including that redaction might cause the jury to speculate
about what information was being withheld. On this record, we are unable to deduce whether
that supposition—or any others—is correct. See Linville, 191 Wn.2d at 525. Jeffries has failed
to meet his burden to show counsel was deficient for failing to seek redaction of the order.
C. Failure to Investigate a Diminished Capacity Defense
Jeffries argues he received ineffective assistance of counsel because counsel failed to
reasonably investigate his ability to assert a diminished capacity defense. This argument appears
to be premised on the fact that counsel did not obtain an expert evaluation before deciding not to
pursue this defense.
15
No. 50636-0-II
“A diminished capacity defense requires evidence of a mental condition [that] prevents
the defendant from forming the requisite intent necessary to commit the crime charged.” State v.
Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003); State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d
626 (2001). Diminished capacity is not a true affirmative defense, but an argument that a
specific element of the offense—the defendant’s mental state—has not been proved. State v.
Gough, 53 Wn. App. 619, 622, 768 P.2d 1028 (1989). The failure of defense counsel to present
a diminished capacity defense is both deficient and prejudicial when the facts supported the
defense. Tilton, 149 Wn.2d at 784.
During Jeffries’s first round of proceedings, Jeffries informed the trial court and defense
counsel that he had been diagnosed with PTSD, which he claimed impacted his ability to form
the requisite mental state for the crimes charged. He requested a competency evaluation under
chapter 10.77 RCW. The trial court considered whether or not to hold a hearing under chapter
10.77 RCW but denied the motion for an evaluation because it found Jeffries was competent to
stand trial. The trial court advised Jeffries, to the extent he wanted to pursue a diminished
capacity defense, that he should discuss it with defense counsel. The court noted, however, that
if Jeffries was under the influence of drugs or alcohol, “you probably don’t get a diminished
capacity instruction.” 1 VRP at 9.
Here, Jeffries has not shown that counsel was deficient. Counsel was aware of Jeffries’s
asserted PTSD diagnosis. The record does not disclose whether Jeffries’s PTSD impaired his
ability to form the requisite intent to commit bail jumping. Equally important, the record does
not disclose the reason why Jeffries’s counsel elected to not pursue a diminished capacity
defense. The decision could have been made for legitimate strategic or tactical reasons.
16
No. 50636-0-II
Moreover, in Jeffries’s subsequent proceeding on his second charge of bail jumping, his
newly appointed defense counsel advised the trial court that he did not believe Jeffries had “a
factual or legal basis to” assert a diminished capacity defense. 4 VRP at 3. And the trial court
found Jeffries competent, based on a forensic psychological report, and allowed him to waive his
right to counsel. These later determinations show that it is highly unlikely that Jeffries’s prior
counsel’s decision not to seek a diminished capacity evaluation was deficient.
Jeffries has failed to show that his counsel’s performance was deficient. His ineffective
assistance claim therefore fails.
IV. LEGAL FINANCIAL OBLIGATIONS
Jeffries argues that the sentencing court erred when it ordered him to pay a $200 criminal
filing fee and a $100 DNA collection fee. The State agrees.
In 2018, the legislature amended former RCW 36.18.020(2)(h) to prohibit trial courts
from imposing a $200 criminal filing fee on defendants who are indigent at the time of
sentencing. LAWS OF 2018, ch. 269, § 7. The legislature also amended RCW 43.43.7541, which
now requires imposition of the DNA collection fee “unless the state has previously collected the
offender’s DNA as a result of a prior conviction.” RCW 43.43.7541; LAWS OF 2018, ch. 269, §
18. In State v. Ramirez, our Supreme Court held that these amendments apply prospectively to
indigent defendants whose direct appeal is not yet final. 191 Wn.2d 732, 747-50, 426 P.3d 714(2018).
The trial court found Jeffries indigent upon sentencing. In light of this finding and the
State’s concession, we remand to the trial court to strike the criminal filing fee. The State’s
records show that Jeffries’s DNA had been previously collected and was on file with the
17
No. 50636-0-II
Washington State Patrol. Thus, we also direct the trial court to strike the DNA collection fee.
The trial court should also strike any accrued interest related to the imposition of these fees.
CONCLUSION
We affirm Jeffries’s convictions. The trial court properly instructed the jury on the
elements necessary to convict on bail jumping, and Jeffries has not shown his counsel provided
ineffective assistance. We remand for the trial court to strike the criminal filing fee, the DNA
collection fee, and any interest associated with those fees.
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.
Glasgow, J.
We concur:
Worswick, J.
Maxa, C.J.
18