State Of Washington, V John Allen Booth, Jr. ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
November 5, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49492-2-II
Consolidated with
Respondent, No. 49499-0-II
No. 49519-8-II
v. No. 49512-1-II
No. 49509-1-II
JOHN ALLEN BOOTH, JR., No. 49502-3-II
Appellant. UNPUBLISHED OPINION
MELNICK, J. — John Booth appeals the denial of his motion to vacate his convictions,
which he based on allegations that the State overheard protected attorney-client communications
and used them against him. After a hearing on Booth’s motion, the trial court found that Booth
had received a fair trial and denied his motion. Booth also appeals from the court’s ruling that
vacated some, but not all, of his outstanding legal financial obligations (LFOs). He makes
numerous arguments in support of his position.
We affirm.
FACTS
I. CONVICTION
In 2010, Booth shot four people while attempting to collect a drug debt. Three of the
victims died. After the shooting, Booth fled to Spokane where the police later found him. Booth
awaited trial at the Lewis County Jail. While there, the police listened to a call made by Booth to
his friend in Spokane. Through the call, the police were able to locate the murder weapon.
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A jury convicted Booth of two counts of murder in the first degree, one count of murder in
the second degree, one count of attempted murder in the first degree, one count of attempted
extortion in the first degree, and one count of unlawful possession of a firearm in the first degree.
He appealed, and we affirmed his convictions.
II. MOTION TO VACATE
Booth then filed a motion to either vacate and dismiss the judgment and sentence or hold
an evidentiary hearing. He filed the motion pursuant to CrR 7.8. Booth alleged that the State
engaged in a pattern of eavesdropping during the preparation of his murder trial which intruded
into his attorney-client communications. The trial court scheduled a hearing.
A. Motion to Compel
Prior to the hearing, but after being appointed counsel, Booth filed a motion to compel the
State to produce telephone records in its possession.1 Booth alleged the State had documents that
would show it had a blanket policy of listening to inmates’ attorney-client phone conversations or,
at the least, had a plan to listen to his attorney-client conversations. Booth requested, among other
documents, “every document with [his] name anywhere in it in the possession of any branch of
the law enforcement of [L]ewis [C]ounty or state controlled agency related to [his motion] in any
way.” Clerk’s Papers (CP) at 243.
The court held a hearing on the motion to compel, but Booth was not present. At the
hearing, the State argued that it had given Booth all relevant documents in its possession as part
of discovery and that the jail had fully responded to Booth’s Public Records Act (PRA) request.
Booth presented no additional evidence.
1
Although Booth personally filed the motion, it appears that his lawyer adopted it. The lawyer
argued the motion.
2
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At one point in the hearing, the court asked Booth’s attorney whether Booth could identify
any specific “items of discovery . . . with sufficient particularity that [the court] could actually
direct the jail in the event that [it] found [Booth] was correct.” 1 Report of Proceedings (RP) at
11. Booth’s attorney responded that Booth “maintains that there is going to be some sort of
documentation or meeting between staff members that they either collaborated or conspired with
one another to listen to his conversations with his attorney.” 1 RP at 11. The court denied Booth’s
motion.
B. Evidentiary Hearing2
Booth alleged four separate instances of misconduct to support his motion to vacate. First,
he alleged that the State listened to telephone calls he had with his attorney and those he had with
his private investigator. Second, he alleged that jail staff and detectives listened to attorney-client
conversations that occurred in the visitation rooms. Third, he alleged that a detective sat behind
him in court and listened to attorney-client conversations that occurred there. And fourth, he
alleged that a correctional officer (CO) overheard attorney-client conversations in a courthouse
conference room.
1. Jail’s Phone System
The Lewis County Jail detained Booth for approximately 16 months. During that time,
Global Tel Link (GTL) operated the jail’s inmate phone system. A sign posted above the phone
in the jail indicated that phone calls were monitored. However, GTL did not record known
attorney-client phone calls. Lawyers provided their phone numbers to the jail. Jail staff then
2
The court entered findings of fact and conclusions of law. Because Booth challenges many of
them, we include the relevant evidence presented.
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inputted the numbers and GTL did not record any calls from those numbers. Booth’s attorney at
the time of his murder trial did not regularly practice in Lewis County.
At one point, CO Jack Haskins, whose job was to listen in on all recorded inmate phone
calls, inadvertently overheard a conversation between Booth and his attorney. He did not intend
to listen to any of Booth’s attorney-client conversations. However, while listening to a call, the
subject matter started “going towards legal questions, legal manner.” 2 RP at 352. At that point,
Haskins stopped listening and told his supervisor. He did not tell his supervisor the content of the
conversation. The supervisor told Haskins to tell Booth what happened, which he did.
Additionally, Haskins asked Booth to clarify what numbers Booth needed added to the attorney
list.
Haskins did not tell anyone about the incident except Booth and his supervisor. No
detective or prosecutor assigned to Booth’s murder case had knowledge that Haskins overheard a
phone call between Booth and his attorney.
Additionally, during his time at the jail, Booth lodged grievances alleging that the jail was
improperly monitoring his phone calls to John Wickert,3 the private investigator assisting his
lawyer. The problem arose because Wickert ran both a bail bond company and a private
investigation company. Booth would sometimes call the phone number associated with Wickert’s
bail bond company when he could not reach Wickert on the private investigation phone number.
Initially, the jail refused to add the bail bond phone number to the do-not-record list. No detective
or prosecutor assigned to Booth’s case knew the jail heard any of Booth’s conversations with
Wickert or any of the substance of those conversations.
3
Wickert did not testify at Booth’s hearing.
4
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At one point during the hearing, Booth attempted to introduce a document that appeared to
indicate which conversations of his the jail recorded and monitored; he obtained the document
from a PRA request. The State objected, arguing that the document was inadmissible because it
had not been properly authenticated by a custodian of GTL. The court sustained the objection.
2. Jail’s Visitation Rooms
During Booth’s detention, the Lewis County Jail did not have completely soundproof
attorney-client visitation rooms. At one point, a local attorney knocked on Booth’s visitation room
while Booth was meeting with his attorney to tell them that he could hear them. Based on
complaints, the jail began making improvements. It appears some of the improvements occurred
while Booth was detained at the jail.
According to the COs who transported Booth from his cell to meet with his lawyer, they
secured him in the visitation room and then stood in the hallway adjacent to the room. On one
occasion, CO Vernon West heard Booth say “that he did kill the kid and the kid had a gun.” 1 RP
at 101. After hearing the statement, he and the other transport CO “immediately moved away.” 1
RP at 102. On subsequent meetings between Booth and his attorney, West stood at the end of the
hall. Booth could see the COs if he turned around while in the visitation room.
CO Curtis Lamping also heard Booth tell his lawyer something like, “The guy had the gun,
so I had to shoot him.” 1 RP at 181. After hearing the statement, Lamping moved to the other end
of the hall so he would not be able to hear Booth.
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According to West and Lamping, Booth seemed to speak particularly loud when he made
the statements that they overheard.
Neither West nor Lamping intended to listen to Booth’s conversations. They also did not
convey the substance of the conversation to anyone besides their fellow transport COs. No other
transport CO remembered learning that West or Lamping overheard Booth’s conversations.
Roger Hunko, Booth’s lawyer during his murder trial, did not know that Booth had
concerns about his representation based on the fact that COs potentially overheard conversations
in the visitation rooms. Additionally, Hunko felt that he could communicate freely with Booth
regarding his murder trial, and jail conditions did not affect his trial strategy.
3. Detective’s Presence in Courtroom
Daniel Riordan, a detective on Booth’s murder trial, worked as extra security in the
courtroom during Booth’s court appearances. Riordan’s supervisor told him to sit in the pew
directly behind Booth.
At one point during a pretrial hearing, Booth accused Riordan of listening to his attorney-
client conversations. Booth informed the court of his concerns, and the court excluded Riordan
from the courtroom. After the incident, Riordan no longer worked as extra security in the
courtroom.
At no point during his time as security did Riordan overhear or intend to overhear
conversations between Booth and his lawyer. He also did not see any notes written by Booth or
his attorney.
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4. Court Conference Room
On one occasion when West transported Booth to court, the court gave Booth and his
attorney a conference room to meet. During the meeting, West sat in the room on the far side. 4
According to Hunko, West’s presence or the fact that he could potentially overhear their
conversation did not affect his trial strategy.
5. Jail Policy
Lewis County had a policy that COs were not to actively listen in on attorney-client
conversations.
No jail supervisor ever instructed a CO to listen to conversations between inmates and
attorneys, or between Booth and his attorney. Besides the COs who directly overheard Booth’s
attorney-client conversations, no one knew the contents of any of Booth’s conversations with his
attorneys.
6. Excluding Booth’s Testimony
At one point during the hearing, Booth was asked whether he had lost faith in his attorney
during the preparation of his murder trial because of the State’s intrusions into his attorney-client
communications. The State objected, and the court sustained the objection as irrelevant. The court
continued, discussing it had knowledge of discord between Booth and Hunko during his murder
trial, evidenced by the bar complaint that Booth had filed.
4
Neither party asked questions of West related to this incident. However, West testified that, aside
from the incident in which he overheard Booth’s conversation in the attorney-client visitation
room, he did not learn anything else between Booth and his attorneys that he shared with anyone.
He also actively avoided hearing inmates’ conversations with their attorneys.
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7. Findings of Fact and Conclusions of Law
At the conclusion of the evidence, the court denied Booth’s motion. It then entered the
following relevant findings of fact:
1.1. There was no pattern of eavesdropping on conversations between
the defendant and his attorney.
....
1.5. After Mr. Booth was placed in the attorney visitation booth, the
corrections staff would proceed down the hallway so that the inmate side of the
interview room was still in view.
....
1.7. On the two occasions where corrections staff inadvertently
overheard Mr. Booth yell to his lawyer, they immediately took steps to distance
themselves away from the attorney/client booths where the conversations took
place.
1.8. Lewis County corrections staff were never instructed, either by their
own command staff, a detective assigned to the case, or the prosecutor’s office, to
eavesdrop on conversations between Mr. Booth and his lawyer.
1.9. No communication between Mr. Booth and his lawyer that may
have been inadvertently heard by corrections staff was ever passed on to jail
command staff, law enforcement, the criminal investigation side of the sheriff’s
office, or the prosecutor’s office.
1.10. The members of the corrections staff doing transport of Mr. Booth
had what the court referred to as a “self-imposed gag order” on any communication
between Mr. Booth and his lawyer that might have been inadvertently overheard
by transport officers.
....
1.14. There was nothing done intentionally, by anyone in the Lewis
County corrections staff, law enforcement, or the prosecutor’s office, to unlawfully
compromise Mr. Booth’s defense of his case.
....
1.16. Mr. Booth’s assertion that he was intimidated or lost confidence in
Mr. Hunko due to the condition of the attorney visitation booths was not supported
by Mr. Hunko’s testimony.
1.17. It is not beyond the scope of the court’s imagination that Mr. Booth
may have deliberately raised his voice when speaking with his lawyer, with the
intention of raising the issue of the lack of soundproofing of the attorney visitation
booths on appeal.
....
1.19. If a defense attorney gives the jail his/her phone number, that
number is blocked in the jail phone call system so it cannot be recorded or
intercepted.
....
8
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1.22. Officer Haskins did not report to anyone the content of [Booth’s]
phone call. Officer Haskins did not report the call to the law enforcement side of
the Sheriff’s office, the detectives, or the prosecutor’s office.
....
1.26. Officer West did not overhear any of the conversation between Mr.
Hunko and Mr. Booth while he was in the conference room in the courthouse with
Mr. Hunko and Mr. Booth.
....
1.29. At no time did Mr. Hunko express to the court that he felt, in any
way, that his ability to represent Mr. Booth thoroughly and completely in the court
of this case was impacted as a result of corrections staff being in the conference
room with him and his client.
CP at 352-56. The court concluded that Booth received a fair trial and was not denied due process.
C. Motion to Expand the Record
A few months after the hearing, the court held a hearing that addressed, among other
motions, Booth’s motion to expand the record from the evidentiary hearing. Booth asked the court
to include in the record a jail handbook indicating that “calls to your attorneys will not be
recorded.” 3 RP at 589.
The court denied the motion stating that sufficient testimony offered at the hearing already
established that the jail did not record known attorney-client calls. Booth contested the court’s
characterization of the testimony. The court replied to Booth, stating, “[Y]our claims as to what
actually happened and what the evidence showed are not accurate.” 3 RP at 595.
D. Motion to Vacate LFOs
Booth also filed a motion to vacate his outstanding LFOs. The State agreed that it could
not collect from Booth’s 1996, 1998, and 1999 cause numbers. The court then signed orders
stating that the State’s ability to collect on these cases had expired. The court also vacated all
discretionary LFOs from Booth’s 2003, 2004, and 2010 cases.
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Booth argued that because he could only make, at most, $15 per month while he was
incarcerated and because he would be incarcerated the rest of his life, the remaining mandatory
LFOs violated his rights under the Eighth Amendment to the United States Constitution. The court
rejected his argument. Booth appeals.
ANALYSIS
I. RIGHT TO COUNSEL AND DUE PROCESS
Booth argues that the eavesdropping by the jail staff violated his rights to counsel and to
due process. Booth assigns error to numerous findings of fact, contending that substantial evidence
does not support the findings. Additionally, Booths argues that the court’s findings do not support
its conclusion. We disagree.
A. Legal Principles
We review a trial court’s decision on a CrR 7.8 motion for an abuse of discretion. State v.
Smith, 159 Wash. App. 694, 699, 247 P.3d 775 (2011). We review a trial court’s factual findings
for substantial evidence. State v. Ieng, 87 Wash. App. 873, 877, 942 P.2d 1091 (1997). Substantial
evidence is a sufficient quantity of evidence to persuade a rational, fair-minded person that a
finding is true. State v. Schultz, 170 Wash. 2d 746, 753, 248 P.3d 484 (2011). Unchallenged findings
of fact are verities on appeal. State v. Pippin, 200 Wash. App. 826, 834, 403 P.3d 907 (2017). We
defer to the trial court on credibility issues. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850
(1990).
We review a trial court’s conclusions of law de novo to see if they are supported by the
findings. Ieng, 87 Wash. App. at 877.
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A defendant’s right to counsel is protected by the United States and Washington
constitutions. U.S. CONST. amend. V, VI; WASH. CONST. art. I, § 22. Intrusion into private
attorney-client communications violates a defendant’s right to effective representation and due
process. State v. Cory, 62 Wash. 2d 371, 374-75, 382 P.2d 1019 (1963). When the State eavesdrops
on a defendant’s attorney-client privileged communication, we presume prejudice. State v. Peña
Fuentes, 179 Wash. 2d 808, 819-20, 318 P.3d 257 (2014). However, this presumption is rebuttable
by the State if it can “show beyond a reasonable doubt that the defendant was not prejudiced.”
Peña Fuentes, 179 Wash. 2d at 820.
B. Substantial Evidence Supports the Challenged Findings
Booth challenges approximately 13 of the court’s findings of fact on the basis that
substantial evidence does not support them. We have reviewed the record and disagree with Booth.
Substantial evidence supports the challenged findings.
Booth also assigns error to seven additional findings of fact; however, he does not provide
argument as to why these findings are deficient. RAP 10.3(a)(6). We conclude that these findings
are verities. Pippin, 200 Wash. App. at 834.
C. Findings Support the Court’s Conclusions
Booth’s argument on how the trial court misapplied the law is not entirely clear. It appears
that Booth is arguing that the State’s intrusion does not have to be intentional to raise the rebuttable
presumption of prejudice, and thus, the State must prove harmlessness beyond a reasonable doubt
even if it only inadvertently overheard attorney-client communications. We conclude that,
regardless of Booth’s inadvertence argument, the State did in fact carry its burden and that the trial
court’s conclusions are supported by its findings.
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Here, the court found that when Booth and Lamping overheard Booth’s conversation in the
visitation room, they immediately distanced themselves. It also found that West, Lamping, and
the other transport COs had a “self-imposed gag order” where they would not and did not share
any information inadvertently overheard. CP at 354. Haskins similarly did not share the content
of the attorney-client telephone call that he inadvertently overheard. The court also found that
West did not overhear anything while he was in the courthouse conference room with Booth and
Hunko. Finally, “[n]o communication between Mr. Booth and his lawyer that may have been
inadvertently heard by corrections staff was ever passed on to jail command staff, law enforcement,
the criminal investigation side of the sheriff’s office, or the prosecutor’s office.” CP at 353.
Therefore, we conclude that the trial court’s findings support the conclusion that Booth
was not prejudiced.5
Based on all of the above, we conclude that substantial evidence supports the trial court’s
findings and that its findings support its conclusion that no violation of Booth’s right to effective
representation or due process occurred.
II. MOTION TO COMPEL
Booth argues that the trial court abused its discretion when it denied his motion to compel,
which sought various evidence. We disagree.6
5
Because we conclude that the State showed beyond a reasonable doubt that Booth was not
prejudiced, we do not decide whether the inadvertent overhearing of confidential attorney-client
communications is a Sixth Amendment violation. Booth argues in the alternative that we should
remand this issue to the trial court for additional fact finding. Because of our resolution of this
issue, we disagree with Booth.
6
We reject the State’s argument that we should not consider Booth’s argument based upon his
failure to accurately cite the record.
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CrR 4.7 governs criminal discovery. However, “prisoners seeking postconviction relief
are not entitled to discovery as a matter of ordinary course, but are limited to discovery only to the
extent the prisoner can show good cause to believe the discovery would prove entitlement to
relief.” In re Pers. Restraint of Gentry, 137 Wash. 2d 378, 391, 972 P.2d 1250 (1999).
We review a trial court’s denial of a motion to compel discovery for an abuse of discretion.
State v. Norby, 122 Wash. 2d 258, 268, 858 P.2d 210 (1993). A trial court abuses its discretion when
it decides a matter on untenable grounds or reasons, or when no reasonable judge would have
reached the same conclusion. State v. Emery, 174 Wash. 2d 741, 765, 278 P.3d 653 (2012); State v.
Lusby, 105 Wash. App. 257, 262, 18 P.3d 625 (2001).
Here, Booth’s motion sought a voluminous amount of records, including “every document
with [his] name anywhere in it in the possession of any branch of the law enforcement of [L]ewis
[C]ounty or state controlled agency related to [his CrR 7.8 motion] in any way.” CP at 243. The
State responded that it had provided all relevant documents.
At a hearing on the motion, the court asked Booth whether he could identify specific “items
of discovery . . . with sufficient particularity that [the court] could actually direct the jail in the
event that [it] found [Booth] was correct.” 1 RP at 11. Booth could not comply with the court’s
request.
Given the broad scope of Booth’s request, coupled with his inability to refine his request,
we conclude that the trial court did not abuse its discretion in denying Booth’s motion to compel.
III. EXCLUDING BOOTH’S PROFFERED EVIDENCE
Booth argues that the trial court abused its discretion when it prevented him from testifying
about his lack of confidence in his attorney. We disagree.
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Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” ER 401. Relevant evidence is generally admissible. ER 402. Yet, relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” ER 403.
Here, it seems clear that the trial court viewed Booth’s proposed testimony, indicating he
had lost faith in his attorney during the preparation of his murder trial, as the “needless presentation
of cumulative evidence.” ER 403. It recognized that Booth had filed a bar complaint against
Hunko, and it was aware that Booth had been unsatisfied with Hunko’s representation. Viewing
the totality of testimony, we conclude that the trial court did not abuse its discretion in limiting
Booth’s testimony.
IV. MOTION TO EXPAND THE RECORD
Booth argues that his post-hearing request to expand the record, made months after the
evidentiary hearing, amounted to a motion to reopen the case and that the trial court abused its
discretion in denying his motion. We disagree.
“Generally, the issue of whether to allow a party to reopen its case to present further
evidence is a matter within the discretion of the trial court.” State v. Brinkley, 66 Wash. App. 844,
848, 837 P.2d 20 (1992). “A trial court’s actions in regard to reopening of a case will be upheld
except upon a showing of manifest abuse of discretion and prejudice resulting to the complaining
party.” Brinkley, 66 Wash. App. at 848.
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Here, Booth essentially asked the court to reconsider its ruling in light of newly proffered
evidence, namely a jail handbook which indicated that the jail would not record calls by inmates
to their attorneys. The court denied the motion, finding the evidence cumulative. Numerous
witnesses testified at trial that once the jail registered an attorney’s number in their phone-system
database, all calls to that number would not be recorded. Thus, the purpose for which Booth
offered the jail handbook was merely cumulative to testimony already in the record. Therefore,
we conclude that the trial court did not abuse its discretion in refusing to reopen the case.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Booth argues that he received ineffective assistance of counsel when his counsel failed to
obtain a GTL records custodian to authenticate phone records. We disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wash. 2d 17, 32, 246 P.3d 1260 (2011).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wash. 2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both (1) that defense counsel’s representation was deficient and (2) that
the deficient representation prejudiced the defendant. Grier, 171 Wash. 2d at 32-33. If either prong
is not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wash. 2d 647, 673,
101 P.3d 1 (2004).
There is a strong presumption that counsel’s representation was effective. State v. Brett,
126 Wash. 2d 136, 198, 892 P.2d 29 (1995). Representation is deficient if, after considering all the
circumstances, the performance falls “‘below an objective standard of reasonableness.’” Grier,
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171 Wash. 2d at 33 (quoting Strickland, 466 U.S. at 688). “The burden is on a defendant alleging
ineffective assistance of counsel to show deficient representation based on the record established
in the proceedings below.” State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995). We
do not consider matters outside the trial record. State v. Linville, 191 Wash. 2d 513, 525, 423 P.3d
842 (2018). Legitimate trial strategy or tactics cannot serve as the basis for a claim of ineffective
assistance of counsel. State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 (2009).
To show prejudice, a defendant must establish that “there is a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceedings would have been
different.” Kyllo, 166 Wash. 2d at 862. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Booth has not shown how he was prejudiced. Booth’s proffered evidence appeared to
indicate which conversations of his were recorded and monitored. However, besides Haskins, who
overheard a portion of Booth’s phone call, every witness who was asked whether they were aware
that someone had overheard a phone call between Booth and his attorney answered no. Thus,
whether Booth’s calls were recorded, which the State agreed they were, was of minimal
importance. Instead, the critical inquiry at Booth’s hearing was whether jail staff shared the
content of the overheard attorney-client conversation. See Peña Fuentes, 179 Wash. 2d at 819-20.
They testified that they did not. It appears Booth’s proffered evidence would not have rebutted
this testimony. Therefore, we conclude that Booth’s ineffective assistance of counsel claim fails.
VI. LFOS
Booth argues that the LFOs imposed on him violate RCW 10.01.160, the Eighth
Amendment to the United States Constitution, and article I, § 14 of the Washington Constitution.
We reject Booth’s argument.
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A. Legal Principles
We generally review a decision imposing LFOs for abuse of discretion. State v. Clark, 191
Wash. App. 369, 372, 362 P.3d 309 (2015). A trial court abuses its discretion when it exercises
discretion in a manifestly unreasonable manner or bases its decision on untenable grounds or
reasons. State v. Neal, 144 Wash. 2d 600, 609, 30 P.3d 1255 (2001). “We review constitutional
challenges de novo.” State v. Beaver, 184 Wash. 2d 321, 331, 358 P.3d 385 (2015).
B. The Court Did Not Abuse Its Discretion
Because Booth’s case was final prior to 2018, when the legislature made changes to the
LFO statutes, those changes do not affect him. State v. Ramirez, 191 Wash. 2d 732, 747, 426 P.3d
714 (2018).
Here, the court vacated all discretionary LFOs from Booth’s 2003, 2004, and 2010 cases.
However, it did not vacate the crime victim penalty assessments, criminal filing fees, DNA
database fees, and restitution because it did not have the discretion to do so, as they were
mandatory. Former RCW 7.68.035(1)(a) (2003, 2004, 2010); former RCW 9.94A.753(5) (2003,
2004, 2010); former RCW 36.18.020 (2003, 2004, 2010); former RCW 43.43.7541 (2003, 2004,
2010); see also State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013). Therefore, we
conclude that the trial court did not abuse its discretion by continuing to impose mandatory LFOs
on Booth.7
ATTORNEY FEES
Booth requests that this court not award the State appellate costs under RAP 14.
7
Booth makes other challenges to his LFOs; however, because they were final in 2018, this appeal
is not the proper forum to raise them.
17
49492-2-II / 49499-0-II / 49519-8-II / 49512-1-II / 49509-1-II / 49502-3-II
The State does not request costs or otherwise respond. It is premature for us to address this
issue at this time.
We affirm.
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.
Melnick, J.
We concur:
Maxa, C.J.
Glasgow, J.
18